, 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


^ 


THE  DOCTRINE  OF 


PROXIMATE    CAUSE 


LAST  CLEAR  CHANCE 


BY 

MELVILLE  PECK 

OF    THE    RICHMOND,    VIRGINIA,    BAR 


H.   CRIM  PECK,   Gknkral  Sai.ks  Agent 
RICHMON]),  VIRGINIA 


? 


T 


335T 


\(\\\ 


f 


Copyright    1914 
By  Melville  Peck 


Primed  and  Bound  by 

L.  H.  Jenkins,  Edition  Book  Manufacturer 

Richmond,  Va, 


PREFACE 

In  view  of  the  large  and  increasing  num- 
ber of  actions  for  damages,  and  the  conse- 
quent necessity  for  the  frequent  application 
of  the  doctrine  cf  proximate  cause,  this 
volume  has  been  compiled  and  written. 

The  object  is  to  bring  together  the  learn- 
ing of  many  courts  of  last  resort  upon  this 
important  topic  to  be  a  lamp  to  the  feet  of 
all  whose  pleasure  and  duty  it  is  to  make 
investigation  of  truth  and  search  for 
causes,  and  not  to  cite  many  cases,  but 
rather  to  cite  a  few  leading  ones  from  each 
of  many  courts.  Those  most  helpful  in  de- 
fining and  applying  the  subject  have  been 
sought,  and  as  far  as  possible  the  latest 
important  enunciations  of  the  courts  have 
been  selected. 

By  giving  to  each  court  a  separate  sec- 
tion it  is  hoped  to  avoid  the  common  sal- 
magundi which  is  more  likely  to  confuse 
than  enlighten  the  student. 

The  law  of  this  subject  has  been  reduced 
to  a  science.  It  deals  in  certainties,  ex- 
(iii) 


iv  PREFACE 

eluding  uncertainties  and  vague  generali- 
ties ;  it  looks  to  the  proximate,  not  to  the 
remote;  to  the  certain,  not  to  the  doubtful; 
to  the  clear,  not  to  the  misty;  to  the  ef- 
ficient, nearest  known  cause  relating  to  the 
effect  under  consideration.  It  looks  upon 
the  investigation  of  truth  as  a  search  for 
causes,  and  upon  all  philosophy  as  in  quest 
of  the  proximate  cause. 

The  proximate  cause  is  the  only  cause 
which  can  be  reasoned  from  conclusively. 
The  real  trouble  now  to  be  encountered 
abides  in  the  facts  of  each  ])articular  case. 
The  whole  truth  will  be  found  pointing  un- 
erringly to  the  proximate  cause,  between 
which  and  the  effect  the  connection  will  be 
plain  and  intelligible. 

Melville  Peck, 

April,  1914.  Richmond,  Va. 


CONTENTS 


Tabic  of  Cases. 


Sec.     1     Proximate  (\ 

luse     (England) 

Sec.     2 

(United    States    Supreme 

Court) 

Sec.     3 

(U.  S.  C.  C.  A.) 

Sec.     4 

(District  of  Columbia) 

>'ec.     5 

(Alabama) 

Sec.     6             "               ' 

'          ( Arizona ) 

Sec.     7 

(Arkansas) 

Sec.     8 

(California) 

Sec.    9 

'          (Colorado) 

Sec.  10 

(Connecticut) 

Sec.  11 

'          (Delaware) 

Sec.  12 

(Florida) 

Sec.  13 

(Georgia) 

Sec.  14 

(Idabo) 

Sec.  15 

(Illinois) 

Sec.  16 

'          (Indiana) 

Sec.  17 

'          (Iowa) 

Sec.  18 

(Kansas) 

Sec.  19 

(Kentucky) 

Sec.  20 

(Louisiana) 

Sec.  21 

'          (Maine) 

Sec.  22 

(Maryland) 

Sec.  23 

(Massacbusetts) 

Sec.  24 

(Micbigan) 

Sec.  25 

(Minnesota) 

Sec.  20 

(Mississippi) 

Sec.  27 

(Missouri) 

Sec.  28 

(Montana) 

(V) 


vi  CONTENTS 

Table  of  Cases. 

Sec.  29  Proximate  Cause     (Nebraska) 

Sec.  30  "              "          (Nevada) 

Sec.  31  "               "          (New  Hampsliire) 

Sec.  32  "              "          (New  Jersey) 

Sec.  83  "               "          (New  Mexico) 

Sec.  34  "               "          (New  York) 

Sec.  35  "               "          (North  Caroliua) 

Sec.  36  "               "          (North  Dakota) 

Sec.  37  "              "          (Ohio) 

Sec.  38  "              "          (Oklahoma) 

Sec.  39  "              "          (Oregon) 

Sec.  40  "               "          (Peunsylvauia) 

Sec.  41  "              "          (Rhode  Island) 

Sec.  42  "              "          (South  Carolina) 

Sec.  43  "               "          (South  Dakota) 

Sec.  44  "              "          (Tennessee) 

Sec.  45  "              "          (Texas) 

Sec.  40  "               "          (Utah) 

Sec.  47  "              "          (Vermont) 

Sec.  48  "               "          (Virginia) 

Sec.  49  "               "          (Washington) 

Sec.  50  "               "          (West  Virginia) 

Sec.  51  "               "          (Wisconsin) 

Sec.  52  "               "          (Wyoming) 

Sec.  53  Act  of  God 

Sec.  54  Act  of  God  and  Human  Intervention 

Sec.  55  Inevitable  Accident 

Sec.  56  Pure  Accident 

Sec.  57  Negligence — Proximate  Cause 

Sec.  58  Proximate  Cause  Defined  and  Analyzed 

Sec.  59  Proximate  Cause  Changes 

Sec.  60  Last  Clear  Chance 


TABLE  OF  CASES 

{References  are  to  sections.) 

Abernathy  v.  Railroad,  35. 

Adams  v.  Young.  37. 

Ala.  Steel  Wire  Co.  v.  Tallan,  5. 

Alberg  v.  Campbell  L.  Co.,  49. 

Allison  V.  City,  48. 

Anderson  v.  Evansville,  16. 

Anderson  v.  Bransford,  46. 

Anniston  Elec.  Sz  Gas.  Co.  v.  Rossen,  5. 

Ark.  Val.  Trust  Co.  v.  Mcllroy,  7. 

Ashcraft  v.  Locomotive  Woiks,  17. 

Atkeson  v.  Jackson,  49. 

A.  C.  L..R.  Co.  V.  Whitney,  12. 
Axtell  V.  N.  P.  R.  Co.,  14 

Backus  Y.  Norfolk  &  Atl.  Ter.  Co.,  60. 
Badovinae  v.  Railroad,  28. 
ualdwin  v.  Railroad,  11. 
Bales  V.  McConnell,  38. 

B.  &  O.  R.  Co.  V.  State  use  &c.,  22. 
B.  &  O.  R.  Co.  V.  Taylor,  3. 
Bassford  Admr.  v.  Railroad.  60. 
Batton  V.  P.  S.  Co.,  32. 
Beckham  v.  S.  A.  L.  Ry.,  13. 
Reiser  v.  Railroad,  19. 

Bell  V.  Bettendorf  Axle  Co.,  17. 
Belles  V.  Kellner,  32. 
Berdos  v.  T.  &  S.  Mills,  23. 
Bessler  v.   Laughlin,   16. 
Billingsley  v.  Railroad,  20. 
Birmingham  R.  L.  &  P.  Co.  v.  Fox,  5. 

(vii) 


ii  TABLE  OF  CASES 

Birm.  Ry.,  L.  &  P.  Co.  v.  Hinton,  5. 
Birmingham  &  Atl.,  R.  Co.  v.  Mattison,  5. 
Black  V.  Railroad,  23. 
Blodgett  C.  Co.  V.  Cheney  L.  Co.,  20. 
Blythe  v.  Railroad,  9. 

B.  of  T.  Co.  y.  Cralle,  48. 
Boston  &  M.  R.  Co.  v.  Miller,  3. 
Brame  v.  Light  etc.,  Co.,  2G. 
Braun  v.  Craven,  15. 

Bridge  v.  Railroad,  CO. 

Briggs  V.  Durham  Trac.  Co.,  53. 

Brossard  v.  Morgan  Co.,  51. 

Brown  v.  Kendall.  5G. 

i.rown  V.  A.   S.  &  W.  Co.,  IG. 

Brown  v.  Pillow,  3. 

Brown  v.  Railroad,  39. 

Bruggeman  v.  Railroad,  60. 

Buchanan  v.  L.  A.  H.  Co.,  39. 

Burk  V.  Creamery  P.  Mfg.  Co.,  17. 

Burleson  v.  M.  L.  &  P.  Co.,  47. 

Burrus  v.  Hines,  4S. 

Butcher  v.  Railroad,  50. 

Butler  V.  N.  E.  S.  Co.,  23. 

Butler  V.  Railroad,  21. 

Butterfield  v.  Forrester,  GO. 

Carlock  v.  Denver  &c.,  Co.,  9. 

Carnes  v.  Finnigan,  23. 

Carnes  v.  Iowa  S.  F.  M.  Assn.,  56. 

Carter  v.  Towne,  23. 

Case  V.  Clark,  10. 

Casteel  v.  Brick  Co.,  18. 

Cavanaugh  v.  M.  C.  R.  Co.,  24. 

C.  C.  Co.  V  Beard,  IG. 

Central  of  Ga.  R.  Co.  v.  Sigma  L.  Co.,  5. 

Chatta.  L.  &  P.  Co.  v.  Hodges,  44. 

C.  &  O.  R.  Co.  v.  Wills.  48. 

C.  &  O.  R.  Co.  V.  Bell,  Admr,  of  Paris,  48. 


TABLE  OF  CASES 

Chicago  R.  Co.  v.  Richardson,  3. 

Chicago  R.  I.  &  P.  Ry.  v.  McKone,  54. 

City  of  G.  F.  V.  Paulsness,  3G. 

City  of  II.  V.  Jahnke,  IG. 

City  of  1 11(1.  V.  Slider,  10. 

City  of  Logaiisport  v.  Smith,  IG. 

City  of  Richmond  v.  Gay's  Admr.,  48. 

Clark  V.  Railroad,  38. 

Clark  V.  Chambers,  1. 

Clark  V.  Wallace,  9. 

Claypool  V.   Wigmore,   IG. 

Cleveland  etc.,  R.  Co.  v.  Powers,  IG. 

Cleveland  v.  Bangor,  21. 

Clinch  Coal  Co.  v.  Osborne,  48. 

Coel  V.  G.  B.  Trac.  Co.,  51. 

Cole  V.  Ger.  S.  &  L.  Soc,  3. 

Collins  V.  Express  Co.,  32. 

Conley  v.  Exp.  Co.,  56. 

Cooper  V.  Railroad,  35. 

Cooper  V.  County,  42. 

Corbin  v.  Railroad,  47. 

Cornet  Phos.  Co.  v.  Jackson,  12. 

Cons.  B.  Co.  v.  Doyle,  58. 

Consol.  Gas  Co.  v.  Getty,  22. 

County  v.  Hixon,  13. 

County  V.  Amer.  Sur.  Co.,  42. 

Coughlin  V.  Blanl,  22. 

Craig  V.  Raili'oad,  2. 

Craig  V.  Railroad,  42. 

Crandall  v.  Consol.  Tel.  Co.,  6. 

Cnmb.  Tel.   Co.  v.   Kranz,   IG. 

Cumb.  Tel.  and  Tel.  Co.  v.  Woodham.  2G. 

Cummings  v.  Ins.  Co.,  17. 

Davies  v.  Mann,  60. 

Davis  v.  Mercer  L.  Co.,  16. 

Davis  V.  Railroad,  42. 

Deisenrieder  v,  K.  M.  M.  Co.,  51. 


TABLE  OF  CASES 

Delinks  v.  N.  Y.  etc.,  Co.,  10. 

Deming  v.  M.  0.  Co.,  44. 

Denbeigh  v.  O.  W.  R.  &  N.  Co.,  14. 

Devine  v.  Railroad,  15. 

Dougherty  v.  Railroad,  17. 

Duckworth  v.  Stalnaker,  50. 

Dyerson  v.  Railroad,  58. 

Eaton  V.  Railroad,  11. 

Eaton  V.  Marion  etc..  Coal  Co.,  15. 

Edge  V.  Railroad,  58. 

Edward  v.  M.  B.  Co.,  4. 

Ehrgott  V.  Mayor,  etc.,  57. 

Eichman  v.  Buckheit,  51. 

i'lliff  V.  Railroad,  39. 

Elliott  V.  N.  Y.  etc.,  R.  Co.,  10. 

Esrey  v.  Railroad,  8. 

Farley  v.  Raili-oad,  50. 

Farrington  v.  Cheoponis,  10. 

F.  K.  C.  Ry.  V.  Wade,  12. 

Feldschneider  v.  Railroad,  51. 

Fergusson  v.  Brent,  55. 

Fidel.  &  Cas.  Co.  v.  Cutts,  5G. 

Filson  V.  Express  Co.,  18. 

Flint  ^.  W.  Mfg.  Co.  v.  Beckett,  16. 

Foster  v.  Malberg,  51. 

Fowlkes  V.  Railroad,  48. 

Fox  V.  Barkeman,  16. 

Frasher  v.  S.  &  L.  Co.,  13. 

Frostraau  v.  Stirratt,  49. 

Fuller  V.  Margaret  M.  Co.,  50. 

Garrigan  v.  Kennady,  43. 

Georgia  R.  &  B.  Co.  v.  Rives,  13. 

Ga.  S.  &  F.  Co.  V.  Barfield,  54. 

(Verity's  Admr.  v.  Haley,  50. 

Gila  Valley  G.  &  N.  Co.  v.  Lyon,  G. 

Gleason  v.  Railroad,  53. 

Goodwin  v.  A.  C.  L.  R.  Co.,  13. 


TABLE  OF  CASES 

Goure  v.  Storey,  14. 

Great  N.  Ry.  v.  Thompson,  3. 

G.  T.  R.  Co.  V.  Cuinmings.  2. 

Green  v.  Railroad,  5S. 

Griffen  v.  Manice,  4. 

Giienther  v.  Railroad,  4. 

Hale  V.  Mich.  Cent.  Ry.,  3. 

Hall  V.  Railroad,  4(>. 

Hammelvvright  v.  Baker,  58. 

Hampson  v.  Taylor,  41. 

Haukin.s  v.   Reimers,  29. 

Hardy  v.  Lumber  Co.,  35. 

Harford  Co.  v.  Pabst  B.  Co.,  3. 

Harriman  v.  Railroad.  37. 

Harris  v.   Railroad,   27. 

Hastings  v.  Stetson,  21. 

Hawkins  v.  Hubbell,  44. 

Heckman  v.  Evenson,  36. 

Heinel  v.  Railroad,  11. 

Heiting  v.  Railroad,  15. 

Henry  v.  Railroad.  IS. 

Hillebrant  v.  Mauz,  49. 

H.   &   B.   Car  Co.   v.   Przeeziankowski,   1(>. 

Higgins  V.  Dewey,  34. 

Hobbs  V.  Railroad,  57. 

Hocking  v.  Assurance  Co.,  49. 

Home  O.  &  G.  Co.  v.  Dabney,  IS. 

Ide  V.  Railroad,  47. 

Ind.  Trac.  Co.  v.  Kidd,  IG. 

Ind.  U.  R.  Co.  V.  Waddington,  IG. 

Ind.  St.  R.  Co.  V.  Schmidt,  IG. 

Ins.  Co.  V.  Tweed,  2. 

Inland  &  S.  C.  Co.  v.  Tolson,  60. 

Jackson  v.  BntUir,  27. 

Jackson  Tp.  v.  Wagner,  40. 

Jacoby  Co.  v.  Williams,  4S. 

Jenkins  v.  La  Salle  etc.,  Co.,  15. 


li  TABLE  OF  CASES 

Jennings  v.   Davis,  3. 
Johnson  v.  Tel.  Co.,  25. 
Johnson  v.  Railroad,  35. 
Josliu  V.  Linden,  13. 
Kaiser  v.  Railroad,  3. 
Kane  v.  Railroad,  27. 
Kasz  V.  Johnson  Service  Cc,  51. 
Keiffer  v.  Railroad,  19. 
Kennon  v.  Gilmer,  28. 

Kenova  Transf.  Co.  v.  Mouongaliela  etc.,  Co.,  55. 
Kent  Mfg.  Co.  v.  Ziiairernian,  9. 
Ring  v.  Island  S.  Co.,  16. 
Kluber  v.  Shannon.  18. 
Kneeshaw  x.  D.  U.  Ry.,  24. 
Knott  V.  Peterson,  17. 
Koloff  V.  Railroad,  49. 
Knhn  &  Neeb  v.  Railroad.  32. 
Kuhuis  V.  Lewis  River  B.  &  L   Co.,  49. 
Laidlaw  v.   Sage,  34. 
La  Loude  v.  Peake,  25. 
Lamb  v.  Lacey,  14. 
Lamb  v.  Railroad,  42. 
Lane  v.  Atl.  Works,  23. 
Lane  P.ros.  Co.  v.  Barnard,  57,  58. 
Lathian  v.  Richards,  1. 
Lee  V.  Powell,  20. 
Lee  V.  Railroad,  41. 
Leeds  v.  N.  Y.  Tel.  Co.,  34. 
Lemke  v.  Milwaukee  etc.,  Co.,  51. 
Liidtke  v.  Railroad,  37. 
Little  Rock  T.  &  E.  Co.  v.  McCaskill,  7. 
I-ogan  V.  Hope,  13. 
Loganbuagh  v.  Railroad,  30. 
Loganbaugh  v.  Va.  City  T.  Co.,  30. 
Loisean  v.  Arp.,  43. 
L.  &  N.  R.  Co.  V.  Crassman,  19. 
L.  &  N.  xi.  Co.  V.  Young,  5. 


TABLE  OF  CASES 

L  &  N.  R   Co.  V.  Williams,  5. 

Lopez  V.  Miuiug  Co.,  G. 

Lowry  v.  Railroad,  34. 

Lutz  V.  Railroad,  33. 

Lyous  V.  Ha i' road.  28. 

Mahaffey  v.   Lumber  Co.,  50. 

Mahogany  v.  Ward,  41. 

Mahoney  v.  Railroad,  47. 

Malcolm  v.  Railroad,  5. 

Marble  v.  City  of  Worcester,  23. 

Marsdou  v.  Ins.  Co.,  1. 

Marsiglia  v.  Dozier,  8. 

Martin  v    So.  Ry.,  42. 

Masliburn  v.  St.  Joe  Imp.  Co.,  14. 

IMasou  V.  Post,  57. 

Miinsey  v.  Webb,  4. 

Mayor  v.  F.  Co.,  44. 

Mayor  of  Macon  v.  r\vkes,  13. 

Metz  V.  Postal  Tel.  Co.,  49. 

M.  &  O.  R.  Co.  V.  C.  M.  Brewing  Co.,  5. 

M.  D.  &  S.  R.  Co  V.  Moore,  13. 

McCahill  v.  N.  Y.  Trans.  Co.,  34. 

McDaiuel  v  Railroad,  20. 

McDermott  v.  Railroad,  23. 

McDonald  v.  Toder,  18. 

McGaliey  v.  Railroad,  29. 

McKibbin  v.  Bax  &  Co.,  29. 

McKinley  v.  Jutte  &  Co.,  55. 

Miller  v.  Kelley  Coal  Co.,  15. 

Miller  v.  Rapids  S.  &  D.  Co.,  17. 

Miller  v.  Railroad,  37. 

Milwaukee  R.  Co.  v.  Kellogg,  2. 

Miner  v.  McNamara,  10. 

Mitchell  V.  Marker,  4. 

Mize  V.  Tel.  Co.,  28. 

Mobus  V.  Waitsfield,  47. 

Murdock  v.  Railroad,  57. 


V  TABLE  OF  CASES 

Mullen  V.  W.  B.  G.  &  E.  Co.,  40. 

Mui-ijhy  V.  So.  P.  Co.,  30. 

Nalewaja  v.  N.  I.  Co.,  49. 

Nail  V.  Taylor,  15. 

National  Fuel  Co.  v.  Green,  9. 

Neal's  Admr.  v.  Railroad,  11. 

Neliring  v.  Conn.  Co.,  10. 

Nicholas  v.  Marsland,  1. 

Nicholas  v.  Tittsfleld  Tp.,  40. 

Nickey  v.  Steuder,  16. 

Nilson  V.  City  of  K.,  28. 

Norman  v.  V-P  Coal  Co.,  50. 

O'Connor  v.  Ditch  Co.,  30. 

O'Donnell  v.  R-C  Mfg.  Co.,  15. 

Omberg  v.  Accident  Assoc,  19. 

Osborne  v.  Van  Dyke,  56. 

O'Sullivan  v.  Lumber  Co.,  51. 

Owen  V.  Cook,  36. 

Owens  V.  Charlotte,  35. 

Palmer  v.  Railroad,  39. 

Penn  v.  Ins.  Co.,  35. 

Penn.  R.  Co.  v.  Kerr,  34. 

Philbrick   v.    Railroad,   21. 

Philmer  v.  Boise  Trac.  Co.,  14. 

Pickett  V.   Railroad,   60. 

Pielke  v.  Railroad,  43. 

I'lace  V.   Sterling,   10. 

Pollard  V.  F.  I.  Oil  Co.,  42. 

I'owers  V.  Sumbler,  IS. 

Powers  V.  Railway,  17. 

Pulaski  G.  L.  Co.  v.  McCliutock,  7. 

P.  H.  &  F.  M.  Roots  Co.  V.    Meeker,  16. 

P-W  Ins.  Co.  V.  W.  U.  Tel.  Co.,  15. 

Quinby  v.  Woodbury,  31. 

Railroad  v.  Bighara,  45. 

Railroad  v.  Brown,  2. 

Railroad  v.  Brown,  57. 


TABLE  OF  CASES 

Railroad  v.  Calhoun,  2. 

Railroad  v.  Chapman,  5. 

Railroad  v.  Cook,  52. 

Railroad  v.  Edwards,  45. 

Railroad  v.  Hess,  38. 

Railroad  v.  Johnson,  45. 

Railroad  v.  Jones,  57. 

Railroad  v.  Jones,  59. 

Railroad  v.  Kellogg,  57. 

Railroad  v.  Kelly,  44. 

Railroad  v.  Lilley,  29. 

Railroad  v.  Paris,  59. 

Railroad  v.  Reed,  45. 

Railway  v.   Staley,  37. 

Railroad  v.  State,  57. 

Railroad  v.  Street,  45. 

Railroad  v.  Wall,  45. 

Railroad  v.  Welch,  45. 

Reidell  v.  Trae.  Co.,   GO. 

Repub.  Iron  Co.  v.  Lulu,  16. 

Richmond  Tr.  Co.  v.  Martin,  58. 

Rincicotti  v.  O'Brien  Co.,  10. 

Ring  V.  City,  34. 

Rio  Grande  Co.  v.  Boyd,  9. 

Rippetol  V.  Feely,  14. 

Roanoke  Ry.  Co.  v.  Carrol,  CO. 

Roddy  V.  Railroad,  57. 

Rossiter  v.  Peter  C.  G.  Factory,  34. 

Russel  V.  Ger.  Fire  Ins.  Co.,  25. 

Russell  V.  Fernandez,  20. 

Ryan  v.  Railroad,  34. 

St.  L.  &  So.  Ry.  V.  INIackey,  7. 

St.  L.  &  So.  Ry.  V.  Fultz,  7. 

St.  L.  &  S.  F.  R.  Co.  V.  Kilpatrick,  7. 

Saunders  v.  Coleman,  53. 

Savana  Elec.  Co.  v.  Wheeler,  13. 

Schaeffer  v.  Jackson  Tp.,  40. 


vi  TABLE  OF  CASES 

►Scholl  V.  Belcher,  39. 

Schwartz  v.  Cal.  G.  &  E.  Corp.,  8. 

Scott  V.  Shepherd,  1. 

Seale  v.  Railroad,  45. 

Seckerson  v.  Sinclair,  36. 

Seith  V.  Com.  Elec.  Co.,  15. 

Serdan  v.  Falk  Co.,  51. 

Silock  v.  Railroad,  4G. 

Smith  V.  Magiuuis,  7. 

Smith  V.  Conn.  Ry.  &  L.  Co.,  10. 

Smith  V.   Railroad,  60. 

Soule  V.  Weatherby,  46. 

So.  Ry.  Co.  V.  Crawford,  5 

So.  R.  Co.  V.  Bailey,  48,  60. 

Supreme  Lodge  K.  of  P.  v.  Crenshaw,  13. 

Swayne  v.  Conn.  Co.,  10. 

Sweet  V.  Perkins,  34. 

Swift  V.  Newberry,  47. 

Staiuback  v.  Rae,  55. 

Standard  Oil  Co.  v.  Wakefield,  48. 

Staufield  v.  Anderson,  6. 

Stanford  v.  St.  L.  &  S.  F.  R.  Co.,  5. 

Stall  V.  Laubengayer,  24. 

State  V.  Railroad,  31. 

Stevens  v.   Saunders,  4. 

Stone  V.  Railroad,  46. 

Strange  v.  B.  L.  Co.,  7. 

Strobeek  v.  Bren,  25. 

The  Chi.  H.  &  B.  Co.  v.  Mueller,  15. 

The  Germanic,  2. 

The  Santa  Rita,  3. 

The  Mabey,  55. 

The  Majestic,  55. 

The  Germanic,  57. 

The  M.  McCarthey  Co.  v.  Halloran,  36. 

Therriaiilt  v.  England,  28. 

Thompson  v.  Railroad,  8. 


TABLE  OF  CASES  xvii 

Thompson  V.  Kailroad,  49. 
Thoresen  v.  Lumber  Co.,  49. 
Tlaubrou  v.  Dravo  Co.,  40. 
Tibbitts  V.  Railroad,  17. 
Tomasi  v.  Denk  Bros.,  15. 
Towle  V.  Morse,  21. 

Towu  of  Lyons  v.  Watts,  9.  ♦^ 

Trout  V.  Phila.  E.  Co.,  40. 
Trustees  B.  I.  v.  Siers,  50. 
Tsoulfas  V.  N.  E.  &  S.  Co.,  27. 
T.  &  K.  W.  Ry.  V.  Pen.  L.  T.  M.  Co.,  12. 
U.  S.  V.  Boyd,  56. 
Van  Dyke  v.  Ry.  Co.,  47. 
Va.  Car.  Chem.  Co.  v.  Mayson,  5. 
Virginia  etc.,  Co.  v.  Kiser,  4S. 
Votaw  V.  McKeever,  18. 
Wabash  R.  Co.  v.  Tippe.  T.  Co.,  16. 
Walker  v.  Collinsworth,  19. 
Wallace  v.  Keystone  Auto  Co.,  40. 
Ward  V.  Ely-Walker  Co.,   27. 
Ward  V.  Railroad,  35. 

Washington,  A.  &  Mt.  V.  Ry.  Co.  v.  Lukens,  4. 
Washington  v.  Railroad,  50. 
Waters  F.  O.  Co.  v.  Deselms,  2. 
Watts  V.  Montgomery  Tr.  Co.,  5. 
Weatherby  v.  N.  C.  &  St.  L.  R.  Co.,  5. 
Webb  V.  Railroad,  34. 
Wells  V.  Railroad,  39. 
W.  U.  Tel.  Co.  V.  Milton,  12. 
Williams  v.  Breunan,  23. 
Williams  v.  Dickson,  25. 
Willoughby  v.  W.  U.  Tel.  Co.,  34. 
Wil.  City  Ry.  v.  White,  11. 
Willis  V.  County,  40. 
Wilson  V.  Boise  City,  54. 
Wilson  V.  Railroad,  48. 
Winfree  v.  Jones,  48. 


xviii  TABLE  OP  CASES 

Wodnick  v.  Luna  Park,  49. 
Worley  v.  Spreckles,  S. 
W.  &  A.  xc.  Co.  V.  Bryant,  13. 
Yeates  v.  Railroad,  15. 
Yost  V.  Railroad,  27. 


DOCTRINE   OF 

PROXIMATE  CAUSE 


SECTION  1. 

ENaLAND. 


^1.  In  the  evening  of  the  28th  day  of 
October,  1770,  at  Milbome  Port  *  *  *  it 
being  the  day  the  fair  was  held  there,  defen- 
dant threw  a  lighted  serpent,  being  a  large 
squib,  consisting  of  gunpowder  and  other 
combustible  materials,  from  the  street  into 
the  market-house,  which  was  a  covered 
bulding,  supported  by  arches,  open  at  one 
end  and  enclosed  at  the  other  end  and  on 
both  sides,  when  a  large  concourse  of 
people  were  then  assembled.  The  lighted 
serjjent  or  squib  fell  upon  the  standing  of 
one  Yates,  a  vendor  of  gingerbread;  one 
Willis  instantly,  to  prevent  injury  to  him- 
self, threw  the  squib  across  the  market- 
house,  when  it  fell  upon  another  standing 
there,  of  one  Eyall,  on  which  he  was  expos- 
ing wares  for  sale;  Ryall  instantly  and  to 
(1) 


2  DOCTRINE  OF 

Sec.  1.  England. 

save  liimself  and  his  goods  threw  the  squib 
to  another  part  of  the  building,  and  in  so 
throwing  struck  plaintiff  in  the  face,  there- 
with putting  out  one  of  his  eyes.  The  jury 
found  for  plaintiff,  subject  to  the  opinion 
of  the  court.  The  court  said :  ''The  act  of 
throwing  the  squib  into  the  market-house 
was  of  a  mischievous  nature,  and  bespeaks 
a  bad  intention,  and  whether  the  plaintiff's 
eye  was  put  out  mediately  or  immediately 
thereby,  the  defendant,  who  first  threw  the 
squib,  is  answerable  in  this  action ;  but  sup- 
pose the  defendant  had  no  bad  or  mischiev- 
ous intention  when  he  threw  the  squib,  yet 
as  the  injury  done  was  not  inevitable,  this 
action  well  lies  against  him"  *  *  *  _ 
{Saott  V.  Shepherd,  3  Wilson  403,  2  W. 
Blackstone's  892.) 

U  2.  Defendant  having  unlawfully  placed 
a  dangerous  instrument  in  the  public  high- 
w&,y,  was  liable  in  respect  of  injuries  occa- 
sioned by  it  to  plaintiff,  who  was  lawfully 
using  the  road,  notwithstanding  the  fact 
that  the  immediate  cause  of  the  accident 
was  the  intervening  act  of  a  third  person 
in  removing  the  dangerous  instrument 
from  the  carriageway,  where  defendant  had 


PROXIMATE   CAUSE.  3 

Sec.  1.  England. 

placed  it,  to  the  foot-imth,  where  plaintiff 
was  injured  by  it.  {Clark  v.  Chambers,  3 
Q.  B.  327.) 

1|3.  Plate  glass  windows  were  insured 
against  ''loss  or  damage  originating  from 
any  cause  whatsoever  except  fire,  breakage 
during  removal,  alteration,  or  repair  of 
premises."  A  fire  broke  out  on  adjoining 
premises.  Plaintiff*,  assisted  by  his  neigh- 
bors, was  removing  his  merchandise  from 
the  room — a  mob  attracted  by  the  fire,  tore 
down  the  shutters  and  broke  the  insured 
glass  for  the  purpose  of  plunder.  Held, 
that  the  proximate  cause  of  damage  to  glass 
was  the  lawless  act  of  the  mob,  and  that  it 
did  not  originate  from  the  fire  or  breakage 
during  removal."  (Marsdon  v.  Ins.  Co.,  1 
C.  P.  232.) 

H  4.  ' '  One  who  stores  water  on  his  own 
land,  and  uses  all  reasonable  care  to  keep 
it  safely  there,  is  not  liable  for  damages 
effected  by  an  escape  of  the  water,  if  the 
escape  be  caused  by  the  act  of  God,  or  vis 
7najor;  e.  g.,  by  an  extraordinary  rainfall, 
which  could  not  reasonably  have  been  an- 
ticipated, although,  if  it  had  been  antici- 


4  DOCTRINE    OF 

Sec.  1.  Enfjland. 

pated,    the    effect   might   have   been   pre- 
vented." 

^5.  "When  the  law  creates  a  duty  and 
the  party  is  disabled  from  performing  it 
without  any  default  of  his  own,  by  the  act 
of  God,  or  the  King's  enemies,  the  law  will 
excuse  him;  but  when  a  party  by  his  own 
contract  creates  a  duty,  he  is  bound  to  make 
it  good  notwithstanding  any  accident  by  in- 
evitable necessity. ' '  {Nicholas  v.  Marsland, 
2  Ex.  Div.  1.) 

^6.  ' '  Where  the  proximate  cause  is  the 
malicious  act  of  a  third  person  against 
which  precautions  would  have  been  inoper- 
ative, the  defendant  is  not  liable  in  the 
absence  of  a  finding  either  that  he  insti- 
gated it  or  that  he  ouf>ht  to  have  foreseen 
and  provided  against  it."  {Lathian  v. 
Richards,  1  Law  Kepoii;  263  (1913.) 


PROXIMATE  CAUSE. 


SECTION  2. 


UNITED  STATES  SUPREME  COURT. 

1[7.  ''One  obliged  to  form  a  judgment 
in  an  emergency  on  the  spot  is  not  to  be 
held  accomitable  in  the  same  measure  as 
one  able  to  judge  the  situation  in  cold  ab- 
straction." {Railroad  Co.  v.  Broivn,  229 
IT.  S.  317.  Citing  The  Germanic,  196  U.  S. 
589.) 

Assumption  or  Risk  and  Conteibutoey 
Negligence  Distinguished. 

5[  8.  "  There  is  a  practical  and  clear  dis- 
tinction between  assumption  of  risk  and 
contributory  negligence.  By  the  former, 
the  employee  assumes  the  risk  of  ordinary 
dangers  of  occupation  and  those  dangers 
that  are  plainly  observable ;  the  latter  is  the 
omission  of  the  employed  to  use  those  pre- 
cautions for  his  own  safety  which  ordinaiy 
prudence  requires."  {Craig  v.  Railroad, 
220  U.  S.  590.) 

1[9.  "Although  defendant  may  have 
been  originally  in  fault,  an  entirely  depend- 
ent and  unrelated  cause  subsequently  inter- 


6  DOCTRINE    OF 

Sec.  2.  United  States  Supreme  Court. 

vening,  and  of  itself  sufficient  to  have 
caused  the  mischief,  may  properly  be  re- 
garded as  the  proximate  cause  of  plaintiff's 
injuries."  {Railroad  v.  Calhoun,  213  U.  S. 
1,  citing  Insurance  Co.  v.  Tiveed,  7  Wall. 
44.) 

%  10.  ' 'Where  the  original  vendor  know- 
ingly sells,  as  coal  oil,  a  mixture  of  coal  oil 
and  gasoline,  of  such  inflammable  charac- 
ter as  to  be  unlawful  under  the  local  statute, 
to  a  vendee  who  in  ignorance  of  its  unlaw- 
ful nature  sells  it  to  a  third  party  in  like 
ignorance,  the  original  vendor  is  directly 
responsible  to  the  final  purchaser  for  the 
consequences  of  an  explosion,  produced 
solely  by  reason  of  such  unlawful  nature 
while  the  oil  is  being  used  in  a  legitimate 
manner.  In  such  a  case  the  responsibility 
of  the  original  vendor  rests  not  on  contract 
but  in  tort. 

On  the  facts  in  this  case,  and  in  view  of 
the  ignorance  of  both  vendees  in  regard 
thereto,  the  unlawful  character  of  the  ar- 
ticles sold  lield  to  be  the  proximate  cause 
of  plaintiff 's  injuries."  *  *  *  (Waters- 
P.  0.  Co.  v.  Besehns,  212  U.  S.  159.) 


PROXIMATE    CAUSE.  7 

Sec.  2.  United  States  Supreme  Court. 

^11.  The  insurance  was  against  fire,  and 
covered  certain  bales  of  cotton  in  the  Ala- 
biUJia  warohoiise  in  Mobile.  The  policy 
contained  a  i)roviso  that  the  insurers  should 
not  be  liable  to  make  good  any  loss  or 
damage  by  fire  which  might  happen  or  take 
place  by  means  of  *  *  *  *  *  explosion 
*****.  During  the  life  of  the  policy, 
an  explosion  occurred  in  a  nearby  ware- 
house, starting  a  fire  which  extended  to 
the  Alabama  warehouse,  destroying  the  in- 
sured cotton.  Held,  that  the  explosion  was 
the  i^roximate  cause  of  the  destruction  of 
the  insured  cotton;  that  the  intervening 
burning  building  did  not  constitute  a  new, 
intervening  cause.  {The  La.  Mutual  Ins. 
Co.  V.  Tweed,  7  Wallace  44, 19  Law  Ed.  65.) 

5112.  "The  question  always  is:  Was 
there  an  unbroken  connection  between  the 
wrongful  act  and  the  injuiy,  a  continuous 
operation?  Did  the  facts  constitute  a  con- 
tinuous succession  of  events,  so  linked  to- 
gether as  to  make  a  natural  whole,  or  was 
there  some  new  and  independent  cause  in- 
tervening between  the  wrong  and  the  in- 
jury? *  *  *  it  must  appear  that  the  injury 
was  the  natui'al  and  probable  consequence 


8  DOCTRINE    OF 

Sec.  2.  United  States  Supreme  Court. 

of  the  negligent  or  wrongful  act,  and  that  it 
ought  to  have  been  foreseen  in  the  light  of 
the  attending  circumstances. ' '  {Mihvaiikee 
Etc.,  R.  Co.  V.  Kellogg,  94  U.  S.  469,  24 
Law  Ed.  256.) 

51 13.  ''If  the  negligence  of  a  railroad 
company  contributes  to,  that  is  to  say,  has 
a  share  in  producing  any  injury  to  its  em- 
ployee, it  is  liable,  even  though  the  negli- 
gence of  a  fellow-servant  of  the  injured 
person  is  also  contributory."  {G.  T.  R. 
Co.  V.  Cummings,  106  U.  S.  700,  27  Law 
Ed.  266.) 


PROXIMATE    CAUSE. 


SECTION  3. 


U.  8.  C.  C.  A. 

51 14.  ''An  injury  which  is  not  the  natu- 
ral consequence  of  an  act  or  omission,  and 
that  would  not  have  resulted  but  for  the 
interposition  of  a  new  and  independent 
cause,  is  not  actionable."  {Chicago,  Etc., 
R.  Co.  V.  Richardson,  121  C.  C.  A.  144.) 

51 15.  ''In  determining  the  cause  of  a 
loss  for  the  purpose  of  fixing  insurance 
liability,  when  concurring  causes  of  the 
damages  appear,  the  proximate  cause  to 
which  the  loss  is  to  be  attributed  is  the 
dominant,  the  efficient  one  that  sets  the 
other  causes  in  operation ;  and  causes  which 
are  incidental  are  not  proximate,  though 
they  may  be  nearer  in  time  and  i^lace  to 
the  loss."  {Hartford,  Etc.,  Co.  v.  Pabst 
B.  Co.,  120  C.  C.  A.  45.) 

51 16.  Proximate  cause  and  contributory 
negligence  are  ordinarily  questions  of  fact 
for  the  jury  to  determine  under  all  the 
circumstances.  {Great  N.  Ry.  v.  Thomp- 
son, 118  C.  C.  A.  79 ;  Hale  v.  Mich.  Cen.  Ry., 
118  C.  C,  A.  627,) 


10  DOCTRINE    OF 

Sec.  3.  u.  S.  C.  C.  A. 

%  17.  ' '  Questions  of  negligence  do  not 
become  questions  of  law  for  the  court,  ex- 
cept where  the  facts  are  such  that  all  rea- 
sonable men  draw  the  same  conclusions 
from  them.  *  *  *"  {B.  d  0.  R.  Co.  v. 
Taylor,  109  C.  C.  A.  172.) 

5118.  ''One  of  the  most  valuable  tests 
to  apply  to  detennine  whether  a  negligent 
act  was  the  proximate  or  remote  cause  of 
an  injury  is  to  determine  whether  a  reason- 
able human  agency  has  intervened,  suffi- 
cient of  itself  to  stand  as  the  cause."  {The 
Santa  Rita,  100  C.  C.  A.  360,  30  L.  R.  A. 
(N.  S.)  121.) 

^19.  ''A  respondent,  who,  *  *  *  *  in 
good  faith,  took  possession  of  a  dredge  be- 
ing operated  by  libelant,  cannot  be  held 
liable  in  damages  on  the  ground  that  by 
reason  of  such  action  libelant's  employees 
on  the  dredge  left  his  service  in  violation 
of  their  contracts,  and  he  was  delayed  in 
his  work  *  *  *  although  he  at  once  retook 
possession  of  the  dredge ;  such  damages  not 
being  the  direct  and  proximate  result  of 
respondent's  claim  but  remote  and  specu- 
lative." {Broivn  v.  Pillotv,  98  C.  C.  A.  579.) 


PROXIMATE    CAUSE.  11 

Sec.  3.  U.  S.  C.  C.  A. 

5f  20.  ' '  The  owner  of  a  pipe  line  used  for 
the  transportation  of  petroleum,  the  es- 
cape of  oil  from  which  may  cause  damage 
to  the  property  of  others,  is  not  bound  to 
the  e^^ercise  of  such  a  high  degree  of  care 
as  will  absolutely  prevent  leakage  of  such 
oil  under  any  circumstances,  *  *   *   *  ." 

*  *  *  *  ''The  blowing  out  of  a  rubber 
gasket  between  the  two  parts  of  a  joint 
does  not  constitute  evidence  of  negligence 
in  the  construction  or  operation  of  the  pipe 
line"  *   *   *   *. 

5121.  "Plaintiff  owned  buildings  near 
defendants'  pipe  line,  one  of  which  was 
occupied  by  a  third  person  as  a  blacksmith 
shop.  The  blowing  out  of  a  gasket  from  a 
pipe  joint  in  the  evening  caused  a  leakage 
of  oil  which  spread  over  the  ground  around 
and  under  plaintiff's  buildings.  When  the 
blacksmith  came  to  his  shop  in  the  morning 
there  was  oil  under  it,  the  floor  being  two 
feet  from  the  ground,  and  also  in  front 
where  he  was  compelled  to  walk  through  it. 
He  started  a  fire,  heated  a  piece  of  iron, 
and  cut  off  a  piece  on  the  anvil,  and  suffered 
such  piece,  which  was  red  hot,  to  fall 
through  a  crack  in  the  floor  where  it  set 


12  DOCTRINE    OF 

Sec.  3.  u.  8.  C.  C.  A. 

fire  to  the  oil,  and  plaintiff's  buildings  were 
destroyed" — by  that  fire. 

''HELD  that,  aside  from  any  question 
of  defendants'  negligence,  the  act  of  the 
blacksmith,  which  was  that  of  an  indepen- 
dent intervening  agent,  for  which  defend- 
ants were  not  responsible,  was  negligent 
as  a  matter  of  law,  and  was  the  proximate 
cause  of  plaintiff's  loss."  {Jennings  et 
al  V.  Davis,  109  C.  C.  A.  451.) 

H  22.  "  The  fact  alone  that  an  act  of  de- 
fendant was  in  violation  of  a  penal  statute 
does  not  afford  ground  for  the  recovery 
of  damages  by  a  third  person,  unless  such 
act  was  also  the  proximate  cause  of  the 
injury  complained  of."    Id. 

51 23.  ''An  act  of  negligence  is  not  the 
'proximate  cause'  of  an  injury,  in  a  legal 
sense,  where  there  was  an  independent  in- 
tervening cause,  unless  the  injuiy  was  not 
only  the  natural,  but  the  probable  result 
of  such  negligence,  and  the  intervening 
cause  should  reasonably  have  been  fore- 
seen."   (The  Santa  Rita,  173  Fed.  R.  413.) 


PROXIMATE    CAUSE.  13 

Sec.  3.  U.  S.  C.  C.  A. 

Definition. 

^24.  ''A  natural  consequence  of  an  act 
is  the  conse(juen('e  which  ordinarily  follows 
it — the  result  which  may  be  reasonably  an- 
ticipated from  it.  A  probable  consequence 
is  one  that  is  more  likely  to  follow  its  sup- 
posed cause  than  it  is  to  fail  to  follow  it." 
{Cole  V.  Ger.  S.  cC-  L.  Soc,  12-1:  Fed.  115, 
59  C.  C.  A.  595,  63  L.  R.  A.  416.) 

Other  cases  on  proximate  cause :  Kaiser 
V.  Railroad,  222  C.  C.  A.  235;  Boston  cG  M. 
R.  Co.  V.  MUler,  122  C.  C.  A.  270;  Chicago, 
Etc.,  R.  Co.  V.  Richardson,  121  C.  C.  A.  144. 


14    ■  DOCTRINE    OF 


SECTION  4. 


D.  C. 

^25.  ''If  the  exposure  of  a  passenger 
to  the  cold  weather,  caused  by  the  negli- 
gence of  a  railroad  company  in  failing  to 
furnish  her  shelter  after  a  collision,  re- 
sulted in  developing  a  tuberculous  condi- 
tion, or  hastening  the  development  of  such 
condition  already  existing,  the  company  is 
liable."  {Washington  A.  cG  Mt.  V.  Ry.  Co. 
V.  Liikens,  32  App.  D.  C.  442.) 

If  26.  The  proximate  cause  in  actions  for 
damages  for  personal  injuries  is  ordinarily 
a  question  for  the  jury.  (32  App.  D.  C. 
442.) 

51 27.  "  In  an  action  against  a  master  for 
the  death  of  his  servant,  the  negligence  of 
a  fellow  servant  contributing  to  the  injury 
will  not  prevent  a  recovery  if  the  negli- 
gence of  the  master  had  a  share  in  pro- 
ducing it."  {Stevens  v.  Saunders,  34  App. 
D.  C.  321.) 

Elevator  Cases. 

%  28.  The  proximate  cause  of  an  injury 
is  ordinarily  a  question  of  fact  for  the  juiy. 


PROXIMATE    CAUSE.  15 

♦Sfec.  4.  D.  C. 

If  there  are  no  circumstances  from  which 
a  jury  can  reasonably  find  that  the  negli- 
gence of  the  defendant  was  the  proximate 
cause  of  tlie  injury,  tlie  (juestion  is  one  for 
the  court.  If  the  facts  are  such  as  to  cause 
reasonable  minds  to  differ,  the  question  is 
one  for  the  jury.  {Munsey  v.  Wehb,  37 
App.  D.  C.  185.)' 

^29.  See  cases  on  subject  of  liability 
for  injury  to  elevator  passengers  in  note 
to  Mitchell  V.  Marker,  25  L.  R.  A.  33,  51 
Ohio  St.;  Edivard  v.  M.  B.  Co.,  2  L.  E.  A. 
(N.  S.)  744,  61  Atl.— R.  I. 

^30.  "It  is  doubtful  if  there  is  any 
knowTi  method  of  conveyance  in  which  a 
higher  degree  of  care  is  required  in  its 
construction  and  operation  than  that  of  an 
elevator."  {Munsey  v.  Webb,  37  App.  D. 
C.  185,  187.)  See  Griffen  v.  Manice,  166 
N.  Y.  188,  59  N.  E.  925,  82  Amer.  State  630, 
52  L.  R.  A.  922. 

5[31.  "U^iere,  in  an  action  against  a 
street  railway  company  by  an  administra- 
tor whose  decedent  was  injured  by  the  pre- 
mature starting  of  a  car  of  the  defendant 
which    the    decedent    was    attempting    to 


16  DOCTRINE    OF 

Sec.  4-  D.  C. 

board,  it  appeared  that  before  and  at  the 
time  of  the  accident,  the  deceased  had  heart 
disease  so  far  developed  that  it  would 
gradually  have  brought  on  a  fatal  hemor- 
rhage at  some  indefinite  future  time,  but 
that  the  final  result  of  the  decease  was 
brought  about  or  hastened  by  the  accident, 
the  proximate  cause  of  the  death,  in  con- 
templation of  law,  is  the  injury  so  received, 
and  not  the  disease."  {Guoither  v.  Rail- 
road, 23  App.  D.  C.  493.) 


PROXIMATE    CAUSE.  17 


SECTION  5. 

ALABAMA. 

f  32.  ''It  is  settled  in  Alabama,  aud  we 
think  it  is  the  weight  of  authority,  that  a 
violation  of  a  statute  or  an  ordinance  is 
negligence  i)er  se,  and  a  i)erson  proximately 
injured  thereby  may  recover  for  such  in- 
juries against  the  violator  of  the  law." 

''Where  the  plaintiff  violates  an  ordi- 
nance, it  may  be  contributory  negligence  if 
it  jn'oximately  contributed  to  the  injury, 
provided  the  ordinance  was  enacted  for  the 
defendant's  benefit,  and  not  merely  for  the 
public  generally — or  for  a  class,"  {Watts 
V,  Montgomery  Trac.  Co.,  175  Ala.  102,  105, 
57  So.  471.) 

51 33.  "Where  plaintiff's  negligence 
though  slight,  is  the  proximate  cause  of 
the  injury,  he  cannot  recover  for  the  simple 
antecedent  negligence  of  defendant."  {Bir- 
mingliam  R.  L.  d  P.  Co.  v.  Fox,  174  Ala. 
657,  56  So.  1013.)  See  L.  &  N.  R.  Co.  v. 
WUliams,  172  Ala.,  560,  55  So.  218. 

5[34.  Action  on  attachment  bond. — Dam- 
age must  be  the  natural  and  proximate  con- 


18  DOCTRINE    OF 

Sec.  5.  Alabama. 

sequence  of  the  wrong,  not  the  remote  or 
accidental  result.  {Pollock  v.  Gantt.,  69 
Ala.  373.) 

U  35.  ' '  A  wrongdoer  is  responsible  only 
for  the  proximate  consequence  of  his  acts." 
(Central  of  Ga.  R.  Co.  v.  Sigma  Lumber 
Co.,  170  Ala.,  627,  628,  54  So.  205.) 

^  36.  Proximate  cause  a  question  for  the 
jury.  {Weatherhy  v.  N.  C.  d  St.  Louis  R. 
Co.,  166  Ala.,  575,  577,  51  So.  959.) 

5137.  Contributory  negligence,  proxi- 
mate cause — children  under  seven  years 
not  chargeable  with ;  over  seven  and  under 
fourteen  are  presumed  prima  facie  to  be 
incapable  thereof;  those  over  age  of  four- 
teen are  presumed  to  be  capable  of  con- 
tributory negligence.  {Birmingham  &  Atl. 
R.  Co.  V,  Mattison,  166  Ala.  602,  52  So.  49.) 

5[38.  ''Wherever  it  appears  that  the 
negligence  of  a  servant  was  the  proximate 
cause  of  his  own  injury,  the  negligence  of 
the  master  ceases  to  be  the  efficient  proxi- 
mate cause  of  the  injury."  {Ala.  Steel 
Wire  Co.  v.  Tallant,  165  Ala.  521,  51  So. 
835.) 


PROXIMATE    CAUSE.  19 

Sec.  5.  Alabama. 

5[39.  ''To  be  actionable  the  negligence 
relied  on  must  be  the  efficient  proximate 
cause  of  the  injury. ' '  (So.  Ry.  Co.  v.  Cratv- 
ford,  164  Ala.  178,  51  So.  340.) 

51 40.  "The  doctrine  of  subsequent  neg- 
ligence or  last  clear  chance  is  recognized 
in  Alabama."  {Stanford  v.  St.  L.  tC-  S.  F. 
R.  Co.,  163  Ala.  210,  50  So.  110.)  See  L. 
&  N.  R.  Co.  V.  Young,  153  Ala.  232,  45 
So.  238. 

^41.  "Contributory  negligence  of  the 
person  injured  is  no  defense  where  the 
proximate  cause  of  the  injury  to  one  known 
to  have  been  in  peril  is  due  to  a  wilful  or 
wanton  wrong."  {Anniston  Elec.  d  Gas 
Co.  V.  Rossen,  159  Ala.  195,  196,  48  So. 
798,  133  Amer.  State,  32.) 

^42.  "The  legal  relation  of  cause  and 
effect  must  be  established  between  the  neg- 
ligence alleged  and  the  injury  suffered  to 
sustain  an  action."  {Malcolm  v.  L.  cG  N.  R. 
Co.,  155  Ala.  337,  46  So.  768;  Virginia- 
Carolina  Chem.  Co.  v.  Mayson,  7  Ala.  App. 
588,  62  So.  253.) 

5[43.  "The  action  was  for  injuries  to 
a  person  on  account  of  the  railroad's  negii- 


20  DOCTRINE    OF 

^t-c.  5.  Alabama. 

gence  in  setting  fire  to  a  dwelling.  The  *  *  * 
person  escaped  from  the  house  without  in- 
jury, but  returned  to  the  burning  house  and 
received  the  injury  complained  of.  Held, 
that  the  causal  connection  between  the  neg- 
ligence charged  and  the  injury  received 
was  not  broken  by  leaving  the  house  in  the 
first  instance."  {Birmingham  Ry.  L.  d  P. 
Co.  V.  Hinton,  U6  Ala.  273,  40  So.  988.) 
See  M.  &  0.  R.  Co.  v.  C.  M.  Breiving  Co., 
146  Ala.  404,  41  So.  17. 

5[44.  "Where  plaintiff  was  struck  and 
injured,  while  walking  along  a  path  by  the 
side  of  a  railroad  track,  by  a  cow  which 
was  thrown  from  the  track  by  the  engine, 
and  which  fell  against  plaintiff  after  strik- 
ing the  ground,  the  injury  is  the  proximate 
consequence  of  the  engine  striking  the  cow ; 
and  the  railroad  company  is  liable  on  ac- 
count of  it,  if  there  was  negligence  on  the 
part  of  the  engineer,  although  he  was  guilty 
of  no  negligence  towards  the  plaintiff'  per- 
sonally." (Railroad  v.  Chapman,  80  Ala. 
615.) 


PROXIMATE    CAUSE.  21 


SECTION  6. 

ARIZONA. 

«[|  45.  "The  term  'proximate  cause'  in 
the  sense  in  which  it  is  ordinarily  used, 
means  the  efficient  cause,  which  in  a  natural 
and  continuous  se(|uence,  unbroken  by  any 
new  and  independent  cause,  produced  the 
event,  and  without  which  that  event  would 
not  have  occurred." 

''Solely"  in  an  instmction  to  the  jury 
was  held  to  be  good  in  place  of  "proximate 
cause."  {Gila  Valley,  G.  &  N.  Rij.  Co.  v. 
Lyon,  8  Arizona,  118,  71  Pacif.  957.) 
(Second  hearing,  9  Arizona  218,  80  Pacif. 
337.) 

CONTRIBUTOKY  NEGLIGENCE, 

^46.  "As  to  the  general  rule  that  a 
plaintiff  cannot  recover  for  the  negligence 
of  the  defendant  if  his  own  want  of  care 
or  negligence  has  in  any  degree  contributed 
to  the  result  complained  of,  there  can  be 
no  dispute."  {Lopez  v.  Mining  Co.,  1  Ari- 
zona, 464,  480.) 

^47.     "Ordinary  care  is  the  degree  of 


22  DOCTRINE    OF 

Sec.  6.  Arizona. 

precaution  which  ordinarily  prudent  per- 
sons would  exercise  under  like  circum- 
stances.  The  failure  to  exercise  such  care 
is  negligence.  Negligence  is  therefore 
never  absolute  or  intrinsic,  but  is  always 
relative  to  the  existing  circumstances." 
{Stanfield  v.  Anderson,  5  Arizona  1.)  See 
Orandall  v.  Consol.  Tel.  Co.,  14  Arizona, 
322. 


PROXIMATE    CAUSE.  23 


SECTION  7. 

ARKANSAS. 

5[48.  '*In  order  to  warrant  a  finding 
that  negligence  is  the  proximate  cause  of 
an  injury,  it  must  appear  that  the  injury 
was  the  natural  and  proximate  consequence 
of  the  negligence  and  that  it  ought  to  have 
been  foreseen  in  the  light  of  the  attending 
circumstances,  but  it  is  not  necessary  that 
the  particular  injury  which  did  happen 
should  have  been  actually  foreseen." 
(Pidaskl  G.  L.  Co.  v.  McClintock,  97  Ark. 
576,  583,  134  S.  W.  1189.)  See  St.  Louis  cG 
So.  Rij.  Co.  v.  Fultz,  91  Ark.  260,  120  S. 
W.  984. 

^  49.  ' '  Where  two  concurring  causes  pro- 
duce an  injury  which  would  not  have  re- 
sulted in  the  absence  of  either,  the  party 
responsible  for  either  cause  is  liable  for 
the  consequent  injury,  and  this  rule  applies 
where  one  of  the  causes  is  the  act  of  God. ' ' 
{St.  Louis  So.  Ry.  Co.  v.  Mackey,  95  Ark. 
297,  301,  129  S.  W.  78.) 

51 50.  ' '  Before  one  can  be  held  liable  for 
an  alleged  negligent  act,  it  must  be  the 


24  DOCTRINE    OF 

Sec.  7.  Arkafiisas. 

proximate  cause  of  the  injury,  and  also 
be  of  such  a  nature  that  the  consequent 
injury  should  be  one  which,  in  the  light 
of  attending  circumstances  a  person  of  ordi- 
nary foresight  and  prudence  would  have 
anticipated."  {Ark.  Valley  Trust  Co.  v. 
Mcllroy,  97  Ark.  160,  165,  133  S.  W.  816, 
31  L.  R.  A.  (N.  S.)  1020.) 

51  51.  Concurrent  cause  of  injury :  Here 
a  horse  scared  at  a  pair  of  goats  in  road 
and  backed  into  pond  and  was  drowned. 
{Strange  v.  Bodcaw  Lumber  Co.,  79  Ark. 
490,  96  S.  W.  152.) 

1[52.  False  certificate  of  acknowledg- 
ment by  a  notary  is  not  proximate  cause 
of  loss.  {Smith  v.  Maginnis,  75  Ark.  472, 
89  S.  W.  91.) 

51 53.  "Where  a  boy  pushed  from  the 
platform  of  a  rapidly  moving  train  by  a 
brakeman,  caught  at  the  iron  handrail,  and 
fell  under  the  wheels,  so  that  his  foot  was 
crushed,  the  push  was  the  proximate  cause 
of  the  injury."  {St.  L.  d  S.  F.  R.  Co.  v. 
Kilpatrick,  67  Ark.  47,  54  S.  W.  971) 

51 54.  ''Where  a  street  car  company  sev- 
ered the  hose  through  which  firemen  were 


PROXIMATE    CAUSE.  25 

Sec.  7.  Arkansas. 

throwing  a  stream  upon  a  burning  building, 
wliereu])on  furniture  contained  therein, 
which  otlierwise  could  have  been  saved,  was 
consumed  for  wixnt  of  water  to  extinguish 
the  fire,  the  act  of  cutting  off  the  hose  is  to 
be  regarded  as  the  proximate  cause  of  the 
injury."  {Lit fie  Rock  T.  d  E.  Co.  v.  Mc- 
CasMll,  75  Ark.  133,  86  S.  W.  997,  70  L.  R. 
A.  680.) 


26  DOCTRINE    OF 


SECTION  8. 

CALIFORNIA. 

5155.  ''An  employee  cannot  recover  on 
account  of  defective  machinery  or  appli- 
ances or  unsafe  place  in  which  to  work, 
unless  the  same  has  directly  caused  or  con- 
tributed to  the  injury,  in  other  words,  was 
the  proximate  cause  of  the  injury. ' '  ( Wor- 
ley  V.  Spreckles  Bros.,  C.  Co.,  163  Cal.  60, 
124  Pac.  697.) 

51 56.  "Negligence  is  not  presumed,  and 
the  plaintiff  must  allege  and  prove  that 
the  negligent  act  of  the  defendant  was  the 
direct  or  proximate  cause  of  the  injury,  or 
he  cannot  recover."  {Marsiglia  v.  Dozier, 
161  Cal.  403,  119  Pac.  505.)  See  Schwartz 
v.  Cal.  G.  cC-  E.  Corp.,  163  Cal.  398,  125 
Pac.  1044. 

5157.  "In  determining  the  question  of 
liability  for  a  negligent  act,  the  'last  clear 
chance'  doctrine  is  only  apjDlicable  to  a 
defendant  who  was  actually  aware  of  the 
fact  that  the  plaintiff  had  negligently  put 
himself  in  a  position  of  danger ;  it  does  not 
apply  to  the  case  of  a  defendant  who  would 


PROXIMATE    CAUSE.  27 

Sec.  8.  California. 

have  discovered  the  plaintiff's  peril  but 
for  remissness  on  his  part."  {Thompson 
V.  Railroad,  165  Cal.  748,  134  Pacif.  709.) 

^58.  "The  party  who  last  had  a  clear 
opportunity  of  avoiding  the  accident,  not- 
withstanding the  negligence  of  his  opi^o- 
nent,  is  considered  solely  responsible  for 
the  injur}'."  {Esrey  v.  Railroad,  103  Cal. 
541,  37  Pac.  500.)    See  post  Sec.  60. 


28  DOCTRINE    OF 

SECTION  9. 

COLORADO. 

%  59.  ' '  The  defendant  induced  the  plain- 
tiff's  servant  in  charge  of  plaintiff's  prem- 
ises to  leave  them,  and  go  to  defendant's 
assistance.  During  the  servant's  absence 
a  fire  was  kindled  upon  or  near  the  plain- 
tiff's premises,  and  was  carried  by  a  wind 
over  his  field,  destroying  his  crop.  Held, 
that  neither  the  kindling  of  the  fire  nor  the 
rising  of  the  wind  was  occasioned  by  the 
servant's  absence,  and  neither  was  the 
natural  and  legitimate  sequence  of  such  ab- 
sence." {CJark  V.  Wallace,  51  Col.  437, 
439,  118  Pac.  973,  27  Ann.  Cas.  349.) 

51 60.  ''A  loaded  car  escaped  from  con- 
trol and  ran  down  a  declivity  in  defendant's 
coal  mine,  injuring  plaintiff,  an  employee. 
The  failure  to  prevent  its  escape  was  due 
to  the  defective  condition  of  the  stop-block, 
but  its  escape  from  the  control  of  the 
driver,  in  the  first  instance,  was  attribu- 
table to  the  mutinous  conduct  of  the  mule 
drawing  the  car  *  *  *  *  *  if  the  appli- 
ance had  been  in  good  order  the  injury 
would  not  have  occurred,  it  was  held  that 


niOXIMATE    CAUSE.  29 

Sec.  9.  Colorado. 

tlie  misconduct  of  the  mole  was  not  to  be 
regarded  as  an  eflicient  intervening  cause, 
and  that  tlie  defendant's  negligence  in  the 
matter  of  the  stop-block  was  the  proximate 
cause  of  the  injury."  {National  Fuel  Co. 
V.  Green,  50  Col.  307,  115  Pac.  709.) 

^61.  "Proximate  Cause"  is  that  cause 
which  in  natural  and  continued  sequence, 
unbroken  by  any  efficient  intervening  cause, 
]»roduced  the  result  complained  of,  and 
witliout  which  that  result  would  not  have 
occurred."  {Totvn  of  Lyons  v.  Watt,  43 
Col.  238,  95  Pac.  949,  18  L.  R.  A.  (N.  S.) 
1135.) 

^  62.  ^ '  An  alleged  defect  in  the  master 's 
appliances,  which,  if  it  existed,  in  no  way 
contributed  to  the  injury  complained  of,  is 
not  actionable ;  and  it  is  error  to  charge  the 
jury  that  if  the  defect  existed  it  was  negli- 
gence." {Kent  Mfg.  Co.  v.  Zimmerman, 
48  CoL  388,  110  Pac.  187.) 

5[63.  "Where  an  engineer  and  fireman, 
by  the  exercise  of  proper  care,  could  have 
discovered  an  animal  at  a  crossing  and 
slacked  the  speed  of  the  train  in  ample  time 
to  have  prevented  killing  it,  their  negli- 
gence was  the  proximate  cause  of  the  kill- 


30  DOCTRINE    OF 

Sec.  9.  Colorado. 

mg,  and  whether  the  owiier  is  guilty  of 
contributory  negligence  in  turning  the  ani- 
mal out  on  the  highway  in  such  close  prox- 
imity to  the  crossing,  is  not  involved.  {Rio 
Grande  Co.  v.  Boyd,  44  Col.  126,  96  Pac. 
966.) 

Leading  case :  Blytlie  v.  Railroad,  15  Col. 
333,  25  Pac.  702,  11  L.  R.  A.  615,  22  Amer. 
State,  403. 

See  Carlock  v.  Denver  cC-c,  Co.,  55  Col. 
146. 


PROXIMATE    CAUSE.  31 


SECTION  10. 

CONNKGTIVUT. 

If 64.  ''The  statutory  liability  *  *  *  * 
of  a  town  for  injuries  received  from  defects 
in  a  highway  exists  only  when  the  defect 
alone  is  the  proximate  cause  of  the  injury. 
If  the  negligence  of  plaintiff  or  of  a  third 
person  concurs  with  the  highway  defect  in 
producing  the  injury,  there  is  no  cause  of 
action."  {Place  v.  Sterling,  86  Conn.  506, 
86  Atl  3.) 

5[65.  ''The  so-called  doctrine  of  last 
clear  chance  is  not  a  newly  discovered 
legal  principal,  limiting  the  operation  of 
contributory  negligence  rule,  but  is  merely 
a  logical  and  inevitable  corrollary  of  the 
long-accepted  doctrine  of  actionable  neg- 
ligence and  contributory  negligence.  To 
furnish  a  basis  for  applying  the  doctrine 
of  contributory  negligence,  there  must 
have  been  a  concurrence  of  negligent  con- 
duct on  the  part  of  the  injured  person  with 
that  of  the  defendant.  The  negligence  of 
the  injured  person  must,  furthermore,  have 
been  of  such  a  character,  and  so  related  to 
the  result,  as  to  be  properly  considered  an 


32  DOCTRINE    OF 

Sec.  10.  Connecticut. 

efficient  or  proximate  cause  of  it."  {Nelir- 
ing  V.  Connecticut  Co.,  86  Conn.  109,  84  Atl. 
301,  45  L.  R.  A.  (N.  S.)  896.) 

5[66.  "Negligence  is  the  proximate 
cause  of  an  injury  only  when  the  sequence 
of  events  is  unbroken  by  any  new  and  inter- 
vening cause,  and  when  without  it  the  in- 
jury would  not  have  occurred;  that  is,  it 
must  be  an  efficient  act  of  causation  sepa- 
rated from  its  effect  by  no  other  act  of 
causation."  {Swayne  v.  Conn.  Co.,  86 
Conn.  439,  85  Atl.  634.) 

5[67.  "Violation  of  a  rule  of  his  em- 
ployer will  not  preclude  a  servant  from  re- 
covery, unless  it  was  the  proximate  cause 
of  his  injury."  {Delinks  v.  N.  Y.  N.  H.  d 
H.  R.  Co.,  85  Conn.  102,  81  Atl.  1036.) 

^68.  "The  fact  that  plaintiff  was  in- 
jured while  coasting  in  a  highway  in  vio- 
lation of  a  city  ordinance,  does  not  neces- 
sarily and  as  a  matter  of  law  preclude  him 
from  recovering  damages  from  a  defendant 
whose  negligence  is  alleged  to  have  caused 
the  injury.  To  have  that  effect  it  must 
also  appear  that  such  violation,  and  not  the 
supervening  negligence  of  defendant  was 


PROXIMATE    CAUSE.  33 

Sec.  10.  Connecticut. 

the  proximate  cause  of  the  injury."  {Far- 
rington  v.  Cheoponis,  84  Conn.  2,  78  Atl. 
G52.) 

^69.  "It  is  immaterial  whether  the  al- 
leged negligence  of  the  defendant  has  been 
established  or  not,  provided  the  plaintiff's 
own  negligence  is  a  i)roximate  cause  of 
his  injury."  {Elliott  v.  N.  Y.  Etc.,  R.  Co., 
84  Conn.  444,  80  Atl.  283.) 

1170.  *'The  fact  that  the  plaintiff  in  an 
action  for  negligence  has  himself  violated 
the  law  is  inmiaterial  and  irrelevant,  un- 
less a  causal  connection  is  shown  between 
his  illegal  act  or  omission  and  the  subse- 
quent injury  for  which  he  seeks  to  recover. ' ' 
{Case  V.  Clar'k,  83  Conn.  183,  76  Atl.  518.) 

Defined. 

5171.  ''The  'proximate  cause'  of  an 
event,  juridically  considered,  is  only  that 
which  in  a  natural  sequence,  unbroken  by 
any  new  and  intervening  cause,  produces 
it,  and  without  which  the  event  would  not 
have  occurred ;  for  the  law  does  not  search 
for  the  more  remote  agencies  by  which  an 
injury  is  brought  about  or  made  possible, 


34  DOCTRINE    OF 

Sec.  10.  Connecticut. 

but  holds  the  hist  conscious  agent  in  pro- 
ducing it  responsible  therefor."  {Miner 
V.  McNamara,  81  Conn.  690,  72  Atl.  138, 
21  L.  R.  A.  (N.  S.)  477.) 

^72.  ''Negligence  is  only  deemed  con- 
tributory when  it  is  a  proximate  cause  of 
the  injury."  (Smith  v.  Conn.  Ry.  &  Ltg. 
Co.,  80  Conn.  268,  67  Atl.  888,  17  L.  K  A. 
(N.  S.)  707.) 

%  73.  Failure  of  master  to  inspect  cable 
proximate  cause  of  servant's  injury,  {Rin- 
cicottiv.  O'Brien  Contracting  Co.,  77  Conn. 
617,  60  Atl.  115,  69  L.  R.  A.  936.) 


PROXIMATE    CAUSE.  35 


SECTION  11. 
DELAWARE. 

1174.  "To  entitle  the  plaintiff  to  a  re- 
covery, he  must  satisfy  the  jury  by  a 
preponderance,  or  greater  weight  of  evi- 
dence, that  the  injuries  complained  of  re- 
sulted from  the  negligence  of  the  defend- 
ant, without  any  fault,  on  his  part,  which 
jjroximately  entered  into  and  contributed 
to  his  injuries."  {Eaton  v.  Wilmington 
City  Rij.  Co.,  1  Boyce  (Del.)  435,  75  Atl. 
369.) 

A  Proper  Instruction. 

^  75.  ' '  The  defendant  can  be  held  liable 
only  for  such  negligence  as  constituted  the 
proximate  cause  of  the  injuries  complained 
of.  *  *  *  *  *  In  order  for  the  plaintiff 
in  either  of  the  cases  before  you  to  recover 
at  all,  it  must  be  proved  to  your  satisfac- 
tion that  the  defendant's  negligence  was 
the  proximate  cause  of  the  injuries  com- 
plained of.  The  plaintiff  cannot  recover 
in  either  case  for  the  effects  of  tubercu- 
losis or  any  other  disease  contracted  after 
the    accident,    unless    it    is    satisfactorily 


30  DOCTRINE    OF 

Sec.  11.  Delaware. 

shown  to  the  jury  that  such  disease  was 
tlie  natural  and  probable  consequence  of 
the  defendant's  negligence,  nor  can  there 
be  an}^  recovery  for  the  effects  of  any  dis- 
ease contracted  before  the  accident  unless 
the  jury  are  clearly  satisfied  from  the  evi- 
dence that  such  disease  was  aggravated  or 
increased  by  the  negligence  of  the  defend- 
ant, and  even  then  recovery  could  be  had 
only  to  the  extent  that  such  effects  were 
so  aggravated  or  increased."  (Baldivin 
v.  Peoples  Ry.  Co.,  7  Penne  (Deb)  383, 
72  Atl.  979.) 

5[  76.  ' '  Whose  negligence  was  the  proxi- 
mate cause  of  the  injury  complained  of?" 
is  a  question  which  must  be  determined 
from  the  evidence,  under  all  the  facts  and 
circumstances  of  the  particular  case." 
{Wil.  City  Ry.  Co.  v.  White, GFenne.  (Del.) 
363,  66  Atl.  1009.) 

51 77.  The  negligence  of  plaintiff  will 
not  defeat  his  action  imless  it  was  the  jn'oxi- 
mate  cause  of  the  injury  complained  of. 
(Heinel  v.  Peoples  Ry.  6  Penne  (Del.)  428 
67  Atl.  173.) 

%  78.  ' '  If  the  negligence  of  the  defend- 
ant was  the  proximate  cause  of  the  death 


PROXIMATE    CAUSE.  37 

Sec.  11.  Delaicare. 

or  injury,  it  is  immaterial  that  the  negli- 
gence of  some  third  person  may  have  in 
some  way  contributed  to  the  accident." 
{NeaVs  Admr.  v.  W.  &  N.  C.  R.  Ry.  3  Penne, 
(Del.)  467,  53  Atl.  338.) 


38  DOCTRINE    OF 

SECTION  12. 

FLORIDA. 

51 79.  Evidence  of  proximate  result.  {A. 
C.  L.  R.  Co.  V.  Whitney,  65  Fla.  72,  61  So. 
179.) 

%  80.  ' '  At  the  common  law,  in  force  in  this 
state,  except  in  the  case  of  railroad  em- 
ployees, where  a  servant  is  guilty  of  negli- 
gence that  contributes  proximately  to  his 
injury,  he  cannot  hold  the  master  liable  for 
such  injury."  {Cornet  Plios.  Co.  v.  Jack- 
son, 65  Fla.  170,  61  So.  318.) 

^81.  ^'A  proximate  cause  is  one  that 
directly  causes,  or  contributes  directly  to 
causing  the  result,  without  any  independent 
efficient  cause  intervening  between  the 
cause  and  the  result  of  injury.  The  par- 
ticular injury  sustained  must  be  such  as 
should  have  been  contemplated  as  a  natural 
and  probable  proximate  result  or  conse- 
quence of  the  cause  of  negligence."  {F. 
E.  C.  Ry.  V.  Wade,  53  Fla.  620,  43  So.  775.) 

■  Leading  cases :  jC.  &  K.  W.  Ry.  v.  Pen. 
L.  T.  M.  Co.,  27  Fla.  1,  157,  9  So.  661,  17 
L.  R.  A.  33;  W.  U.  Tel.  Co.  v.  Milton,  53 
Fla.  485,  43  So.  495,  125  Amer.  State,  1077. 


PROXIMATE    CAUSE.  39 

SECTION  13. 

GEORGIA. 

%  82.  ' '  The  question  of  proximate  cause 
and  of  the  exercise  of  ordinary  care  by  the 
injured  person  are  for  the  jury."  {Logan 
V.  lioije,  139  Ga.  589,  77  S.  E.  809.) 

1[83.  Intervening  cause.  [Georgia  R.  & 
B.  Co.  V.  Rives,  137  Ga.  376,  73  S.  E.  645, 
38L.  E.  A.  (N.  S.)  564.) 

5[  84.  Proximate  cause  of  injury  held  to 
be  negligence  of  co-employee  and  not  of 
master.  {Frasher  v.  Smith  tC-  Kelly  Co., 
136  Ga.  18,  70  S.  E.  792.) 

^  85.  ' '  Where  two  acts  of  negligence  con- 
cur in  producing  an  injury,  in  the  absence 
of  either  of  which  the  injury  would  not 
have  accurred,  and  both  acts  are  chargeable 
to  the  same  person,  the  doctrine  of  proxi- 
mate cause  is  not  applicable."  (County 
of  Butts  V.  Hixon,  135  Ga.  26,  68  S.  E.  786.) 

5[86.  The  crime  of  adulter^^  for  which 
a  man  was  killed  was  not  the  proximate 
cause  of  death.  {Surpeme  Lodge  K.  of  P. 
V.  Crenshaw,  129  Ga.  195,  58  S.  E.  628, 
12  Ann.  Cas.  307.) 


40  DOCTRINE    OF 

8cc.   13.  Georgia. 

1[87.  A  well  considered  case.  {Savannah 
Elec.  Co.  V.  Wheeler,  128  Ga.  550,  58  S. 
E.  38,  10  L.  R.  A.  (N.  S.)  1176). 

51 88.  Passenger  ejected  from  train  for 
drunkenness  was  left  in  helpless  condition 
where  he  was  killed  by  another  train  with- 
out negligence  on  part  of  second  train's 
crew.  Proximate  cause  held  to  be  negli- 
gence in  leaving  him  in  such  place  in  his 
condition.  {M.  D.  d  S.  B.  Co.  v.  Moore, 
125  Ga.  810,  54  S.  E.  700.) 

51 89.  ''Negligence  to  be  the  proximate 
cause  of  an  injury  must  be  such  that  a  per- 
son of  ordinary  caution  and  prudence  would 
have  foreseen  that  some  injuiy  would  likely 
result  therefrom,  not  that  the  specific  in- 
jury would  occur."  {W.  &  A.  R.  Co.  v. 
Bryant,  123  Ga.  77,  83,  51  S.  E.  20.) 
{Mayor  of  Macon  v.  Dykes,  103  Ga.  848, 
31  S.  E.  443.) 

51  90.  An  attempt  to  show  that  a  cess 
pool  generated  malaria  from  which  plain- 
tiff's husband  died,  and  that  negligence  of 
defendant  company  was  proximate  cause 
failed.  {Goodwin  v.  A.  C.  L.  B.  Co.  120 
Ga.  747,  48  S.  E.  139. 


I'KOXIMATiJ    CAUSE.  41 

Sec.   13.  Georgia. 

^91.  '^To  entitle  a  party  to  recover 
damages  of  a  railroad  company  on  accomit 
of  the  negligence  of  its  agents,  it  should 
appear  that  the  negligence  was  the  natural 
and  proximate  cause  of  the  injury;  for, 
should  it  ai)i)ear  that  the  negligence  of  the 
comi)any  would  not  have  damaged  the 
party  complaining,  but  for  the  interposition 
of  a  separate,  independent  agency,  over 
which  the  railroad  company  neither  had 
nor  exercised  control,  then  the  party  com- 
plaining cannot  recover."  {Beckham  v.  S. 
A.  L.  Rij.,  127  Ga.  550,  56  S.  E.  638,  12  L. 
R.  A.  (N.  S.)  476) 

See  Coast  Line  R.  Co.  v.  Daniels,  8  Ga. 
App.  775,  70  S.  E.  203. 


42  DOCTRINE    OF 

SECTION  14 

IDAHO. 

^  92.  The  damages  awarded  must  be  the 
''natural  and  proximate  result"  of  the  in- 
jury complained  of.  {Denheigh  v.  0.  W. 
R.  S  N.  Co.,  23  Idaho,  663,  132  Pac.  112.) 

51 93.  When  it  appears  that  the  negli- 
gence of  plaintiff  was  the  proximate  cause 
of  his  injury,  he  cannot  recover.  {Rippetol  v. 
Feely,  20  Idaho,  619,  119  Pac.  465.)  {Goure 
V.  Storey,  17  Idaho  352,  105  Pacif.  794.) 

5194.  ''No  one  is  liable  for  damages 
caused  by  the  forces  of  nature,  but  he  who 
wrongfully  augments  and  accelerates  those 
forces  is  liable  for  the  damages  caused  by 
his  wrongful  acts."  {Maslihurn  v.  St.  Joe 
Imp.  Co.,  19  Idaho,  30,  113  Pacific,  92.) 
{Lamb  v.  Lacey,  16  Idaho,  664,  102  Pacific 
378.)  {Axtett  v.  N.  P.  R.  Co.,  9  Idaho,  392, 
74  Pacific,  1075.) 

5[  95.  ' '  Negligence  on  the  part  of  a  per- 
son which  was  not  the  proximate  cause  of 
his  injury  or  death  will  not  be  a  bar  to  his 
recovery,"  Proximate  cause  is  matter  for 
jury.  (Philmer  v.  Boise  Trac.  Co.,  14 
Idaho,  327,  94  Pac.  432,  15  L.  R.  A.  (N.  S.) 
254,  125  Amer.  State,  161.) 


PROXIMATE    CAUSE.  43 


SECTION  15. 

ILLINOIS. 

%  96.  "While  the  question  of  proximate 
cause  is  ordinarily  one  of  fact  to  be  deter- 
mined by  the  jury,  yet  it  may,  under  certain 
conditions  of  the  evidence,  become  a  ques- 
tion of  law  for  the  court."  {Devine  v. 
Chicago,  Etc.,  R.  Co.,  259,  111.  449,  102  N. 
E.  803.) 

^  97.  Proximate  cause  matter  of  fact  for 
juiy.  {Tomasi  v.  DenJc  Bros.  C.  d  C.  Co., 
257  111.  70,  100  N.  E.  353.) 

%  98.  "  If  it  can  reasonably  be  concluded 
*  *  *  that  the  accident  would  not  probably 
have  happened  except  for  the  failure  of  a 
railroad  company  to  fence  its  tracks,  it  fol- 
lows that  the  neglect  to  fence  is  the  proxi- 
mate cause  of  the  accident,  unless  some 
other  disconnected  cause,  which  could  not 
have  been  foreseen  by  the  exercise  of  ordi- 
narv  care,  has  intervened."  {Heiting  v. 
C.  R.  I.  d  P.  R.  Co.,  252  111.  466,  96  N. 
E.  842.) 

51 99.  "If  but  for  the  negligence  of  a 
telegraph  company  in  missending  a  tele- 


44  DOCTRINE    OF 

Sec.  15.  Illinois. 

gram-  a  certain  fire  policy  would  have  been 
cancelled  before  the  insured  property  was 
destroyed  by  fire,  the  negligence  of  the  tele- 
graph company  is  the  proximate  cause  of 
the  loss  to  the  insurance  company  from 
the  policy  not  being  cancelled. ' '  {P-W  Ins. 
Co.  V.  W.  U.  Tel.  Co.,  247  111.  84,  93  N.  E. 
134,  30  L.  R.  A.  (N.  S.)  1170.) 

51100.  Damage  by  fire  started  by  de- 
fendant on  his  property  matter  for  jury. 
{Nail  V.  Taylor,  247  111.  580,  93  N.  E.  359.) 

Defined. 

51 101.  "The  nearest  independent  cause 
which  is  adequate  to  produce  and  does 
bring  about  an  accident  is  the  proximate 
cause  of  the  same  and  supersedes  any  re- 
mote cause."  {Yeates  v.  I.  C.  R.  Co.,  241 
111.  205,  89  N.  E.  338.) 

51  102.  "If  a  negligent  act  does  nothing 
more  than  furnish  a  condition  by  which  an 
inimy  is  made  possible,  and  such  condi- 
tion, by  the  subsequent  act  of  a  third  per- 
son, causes  an  injury,  the  two  acts  are  not 
concurrent  and  the  existence  of  the  condi- 
tion is  not  the  proximate  cause  of  the  in- 


PROXIMATE    CAUSE.  45 

Sec.  15.  Illinois. 

jury."  {Seith  v.  Com.  Elec.  Co.,  241  111. 
252,  89  N.  E.  425,  24  L.  R.  A.  (N.  S.)  978.) 
<f[  103.  Kicking  of  a  mule  proximate 
cause  of  one's  injury  by  being  thrown 
under  a  coal  car. 

Knowledge  of  the  mule's  vicious  habits 
by  plaintiff  and  defendant  is  important. 
{Miller  V.  Kelley  Coal  Co.,  239  111.  626,  88 
N.  E.  196.) 

51 104.  ^ '  Where  the  injurious  conse- 
quences might  have  been  foreseen  as  likely 
to  result  from  the  first  negligent  act  or 
omission,  the  act  of  a  third  person  will  not 
excuse  the  first  wrongdoer."  {Jenkins  v. 
La  Salle  C.  C.  Coal  Co.,  182  111.  App.  36.) 

Test. 

51 105.  ' '  The  general  test  as  to  whether 
negligence  is  the  proximate  cause  of  an 
injury  is  whether  it  is  such  that  a  person 
of  ordinary  intelligence  could  have  foreseen 
that  an  accident  was  liable  to  be  produced 
thereby."  {Eaton  v.  Marion  County  Coal 
Co.,  173  111.  App.  444.) 


46  DOCTRINE    OF 

Sec.   15.  Illinois. 

Matter  of  Law. 

5[  106.  ''The  question  of  proximate 
cause  becomes  a  question  of  law  only  where 
the  facts  are  clear  and  such  that  there  could 
be  no  difference,  in  the  judgment  of  reason- 
able men,  as  to  the  inference  to  be  drawn 
therefrom."  {O'Donnell  v.  R-C  Mfg.  Co., 
172  111.  App.  601.) 

^  107.  *'An  act  or  omission  is  the  proxi- 
mate cause  of  an  injury  when,  under  all 
the  attending  circumstances,  a  person  of 
ordinary  piiidence  would  have  foreseen 
that  such  act  or  omission  would  probably 
result  in  consequent  injury  to  some  one." 
{The  Chicago  H.  d  B.  Co.  v.  Mueller,  203 
111.  558,  67  N.  E.  409.) 

Defined. 

^  108.  ' '  Proximate  damages  are  such  as 
are  the  ordinary  and  natural  results  of  the 
omission  or  commission  of  acts  of  negli- 
gence, and  such  as  are  usual  and  might 
have  been  reasonably  expected.  Remote 
damages  are  such  as  are  the  unusual  and 
unexpected  result,  not  reasonably  to  be  an- 
ticipated from  an  accidental   or  unusual 


PKOXIMATE    CAUSE.  4? 

Sec.  15.  Illinois. 

combination  of  circumstances — a  result  be- 
yond and  over  which  the  negligent  party 
had  no  control."  {Braun  v.  Craven,  175 
111.  40],  40G,  51  N.  E.  657,  42  L.  R.  A.  199.) 


48  DOCTRINE    OF 

SECTION  16. 

INDIANA. 

Test. 

%  109.  ''A  test  of  proximate  cause  is  to 
be  found  in  the  probability  of  injurious  con- 
sequences fairly  to  be  anticipated  from  the 
omission  of  duty  or  the  negligent  act." 
{King  v.  Island  Steel  Co.,  Ill  Ind.  201, 
207,  97  N.  E.  529.) 

5[  110.  ' '  If  an  efficient  adequate  cause  is 
shown,  it  may  be  considered  as  the  real 
proximate  cause,  unless  another,  not  inci- 
dental to  it,  but  independent  thereof,  ap- 
pears to  have  intervened  and  caused  the 
accident  or  injury  in  controversy. ' '  {Davis 
V.  Mercer  Lumber  Co.,  164  Ind.  413,  73  N. 
E.  899.) 

See  Cleveland  Etc.,  R.  Co.  v.  Powers,  173 
Ind.  118,  88  N.  E.  1073,  89  N.  E.  485. 

Question  of  Law. 

51  111.  ''When  the  facts  are  undisputed, 
what  is  proximate  cause  of  an  injury  is  a 
question  of  law  for  the  court."  {H.  cG  B. 
Car.  Co.  V.  Przeziankowsld,  170  Ind.  1,  15, 
83  N.  E.  626;  Cumh.  Tel.  Co.  v.  Kranz, 
48  Ind.  App.  67,  95  N.  E.  371.) 


PROXIMATE    CAUSE.  49 

Sec.  16.  Indiana. 

^112.  "In  determining  the  proximate 
cause  of  an  injury  the  courts  will  not  so 
indulge  in  refinements  and  subtleties  as  to 
defeat  substantial  justice."  (Indianapolis 
U.  R.  Co.  V.  Waddington,  169  Ind.  448,  459, 
82  N.  E.  1030.) 

Defined. 

51 1 13.  "  Tbe  efficient  and  predominating 
cause  of  an  injury  is  considered  as  the 
legally  proximate  cause,  although  subordi- 
nate and  independent  causes  may  have  as- 
sisted." {Bessler  v.  Laughlin,  168  Ind.  38, 
79  N.  E.  1033.) 

5[  114.  "To  deny  a  recovery  of  damages 
negligently  caused,  on  the  ground  of  con- 
tributory negligence,  it  must  appear  that 
contributory  negligence  proximately,  ac- 
tively and  contemporaneously  contributed 
to  such  injury."  {Ind.  Trac.  Etc.  Co.  v. 
Kidd,  167  Ind.  402,  408,  79  N.  E.  347,  10 
Ann.  Cas.  942.) 

5[115.  "Where  the  proximate  result  of 
defendant's  negligence  is  damage  to  plain- 
tiff, the  defendant  is  liable  provided  the 
line  of  causation  is  not  broken  by  some  in- 
tervening responsible  agent."    {Flint  &  W. 


50  DOCTRINE    OF 

Sec.  16.  Indiana. 

Mfg.  Co.  V.  Beckett,  167  Ind.  491,  79  N.  E. 
503,  12  L.  R.  A.  (N.  S.)  924.) 

51 1 16.  '  ^  Wliere  an  injury  is  traceable  by 
natural  laws  of  causation  to  defendant's 
wrongful  act,  such  act  is  the  proximate 
cause  of  such  injury,  if  such  injury  ac- 
cording to  common  experience  and  obser- 
vation was  a  probable  one  to  flow  from 
such  wrongful  act."  (P.  H.  &  F.  M.  Roots 
Co.  V.  Meeker,  165  Ind.  132,  73  N.  E.  253.) 

Defined. 

5[  117.  ''The  proximate  cause  is  the  effi- 
cient cause,  the  one  that  necessarily  sets 
the  other  causes  in  operation,  and  those 
merely  incidental  or  instruments  of  a  con- 
trolling agency  are  not  proximate,  though 
they  may  be  nearer  in  time  to  the  result. ' ' 
{Indianapolis  St.  R.  Co.  v.  Schmidt,  163 
Ind.  360,  71  N.  E.  201.) 

^118.  Fine  and  imprisonment  proxi- 
mate result  of  false  representation,  and  de- 
fendant is  liable  therefor.  {Anderson  v. 
Evansville  Etc.  Assn.,  49  Ind.  App.  403,  97 
N.  E.  445.) 

<^119.    "The  proximate  cause  is  the  de- 


I'ROXIMATK    f'ATJSE.  51 

»SV'6'.  JG.  Indiana. 

cisive  cause;  and  it  may  consist  in  omission 
as  well  as  commission."  {Republic  Iron 
Go.  V.  Lulu,  48  Ind.  App.  271,  92  N.  E.  993.) 

%  120.  '■ '  Negligence  to  be  actionable  must 
be  the  proximate  cause  of  the  injury  com- 
plained of."  {City  of  Indianapolis  v. 
Slider,  48  Ind.  App.  38,  95  N.  E.  334.) 

5[  121.  ''A  city  in  constructing  its  elec- 
tric light  plant  is  required  to  anticipate 
the  construction  of  telephone  lines,  and  the 
sagging  thereof,  and  cannot  avail  itself  of 
the  doctrine  of  a  responsible,  intervening 
agent,  where  injury  is  caused  by  its  charg- 
ing the  telephone  wires."  {City  of  Logans- 
port  V.  Smith,  47  Ind.  App.  64,  93  N.  E. 
883.) 

^122.  ''Where  it  was  shown  that  the 
defendant  was  negligent  in  the  first  in- 
stance, but  that  the  injury  complained  of 
would  not  have  resulted,  from  such  negli- 
gence, and  that  the  negligent  act  of  an  in- 
dependent, responsible  and  intervening 
agent  was  the  direct  and  proximate  cause 
of  the  injury  complained  of,  such  defend- 
ant is  not  liable."  {Claypool  v.  Wigmore, 
34  Ind.  App.  35,  71  N.  E.  509.) 


52  DOCTRINE    OF 

Sec.  16.  Indiana. 

5[123.  "An  intervening  responsible 
agent  cuts  off  the  line  of  causation  in  neg- 
ligence, except  where  such  agent's  inter- 
vention could  be  foreseen  as  the  natural 
or  probable  result  of  the  negligent  act." 
{Broiun  v.  A.  S.  d  W.  Co.,  43  Ind.  App.  560, 
88  N.  E.  80.) 

51 124.  ' '  If  the  intervening  act  is  such  as 
might  reasonably  have  been  foreseen  or  an- 
ticipated as  a  natural  or  probable  result 
of  the  original  negligence,  the  original  neg- 
ligence will,  notwithstanding  such  interven- 
ing act,  be  regarded  as  the  proximate  cause 
of  the  injury."  {Nichey  v.  Steuder,  164 
Ind.  189,  73  N.  E.  117.) 

See  Fox  v.  Barkeman,  178  Ind.  572 ;  Wa- 
bash R.  Co.  V.  Tippe.  T.  Co.,  178  Ind.  113; 
City  of  H.  V.  Jahnhe,  178  Ind.  177;  C.  C. 
Co.  Y.  Beard,  52  Ind.  App.  260. 


PROXIMATE    CAUSE.  53 

SECTION  17. 

IOWA. 

51125.  ''In  an  action  for  a  death  from 
unlawful  sale  of  licjuor,  the  proximate 
cause  of  the  death  is  one  of  fact,  and  it 
is  an  error  to  instruct  that  certain  facts,  if 
shown,  will  establish  this  element  of  the 
case."  {Knott  v.  Peterson,  Etc.,  125  Iowa, 
404,  101  N.  W.  173.) 

5[  126.  "A  railroad  company  is  not  lia- 
ble for  an  injury  to  a  child  while  riding 
upon  a  hand  car  with  section  men,  at  their 
instance  and  request,  either  ujoon  the 
theory  that  the  child  was  a  passenger,  a 
licensee  or  a  trespasser."  "The  original 
wrong  in  placing  the  child  upon  the  car, 
for  which  the  railroad  company  was  in  no 
way  responsible,  was  the  proximate  cause 
of  the  injury."  {Douglierty  v.  Chicago,  M. 
d  St.  P.  Ry.  Co.,  137  Iowa,  257,  114  N.  E. 
902,  14  L.  E.  A.  (N.  S.)  590.) 

^  127.  ' '  The  sale  of  poisonous  substances 
without  labeling  the  same  as  required  by 
law  is  negligence  per  se." 

"Wliere  several  proximate  causes  con- 
tribute to  an  accident,  and  each  is  an  effec- 
tive cause,  the  result  may  be  attributed  to 


54  DOCTRINE    OF 

Sec.  17.  Iowa. 

any  or  all  of  the  causes. ' '  {Burk  v.  Cream- 
ertj  P.  Mfg.  Co.,  126  Iowa,  730,  102  N.  W. 
793.) 

5[128.  ''In  an  action  against  a  county 
for  injuries  caused  by  the  breaking  of  a 
defective. railing  on  a  bridge,  it  appeared 
that  one  of  plaintiff's  horses  became  fright- 
ened at  a  flash  of  lightning,  and  settled  back 
in  the  harness,  and  was  pushed  by  the  other 
horse  against  the  railing,  which  gave  way. 
Held,  that  an  instruction  that,  if  the  acci- 
dent would  not  have  happened  had  there 
been  a  proper  railing  on  the  bridge,  then 
the  defective  railing  was  the  proximate 
cause  of  the  injury,  but  that,  if  the  accident 
would  have  happened  had  the  railing  been 
sufficient,  then  the  railing  was  not  the  cause 
of  the  injury,  and  plaintiff  could  not  re- 
cover, was  proper."  {Walrod  v.  Webster 
Co.,  110  Iowa  349,  47  L.  E.  A.  480.) 

%  129.  "Where  negligence  of  the  master 
as  shown  by  the  proven  circumstances  is 
such  that  it  might  have  been  the  proxi- 
mate cause  of  servant's  injuries,  a  verdict 
for  the  servant  will  not  be  disturbed." 
{Bell  V.  Bettendorf  Axle  Co.,  146  Iowa,  337, 
125  N.  W.  170.) 


PROXIMATE    CAUSE.  55 

-Sec.  n.  Iowa. 

51 130.  ''One  whose  contributory  negli- 
gence continues  up  to  the  very  moment  of 
liis  injury,  is  not  entitled  to  have  his  case 
submitted  under  the  doctrine  of  the  last 
clear  chance."  {Poicers  v.  Des  Moines  City 
Bij.  Co.,  143  Iowa  427,  121  N.  W.  1095.) 

%  131.  ''Negligence  is  not  the  proximate 
cause  of  an  injury  unless  it  can  be  said 
that  but  for  such  negligence  the  injury 
would  not  have  happened."  {Tihhitts  v. 
By.  Co.,  138  Iowa,  178,  115  N.  W.  1021.) 

^132.  "Even  though  plaintiff's  negli- 
gence in  operating  a  machine  may  have 
been  the  proximate  cause  of  his  injury,  yet 
as  it  was  concurrent  with  that  of  defend- 
ant in  failing  to  properly  guard  the  ma- 
chine, that  fact  would  not  relieve  defend- 
ant from  liabilities  for  the  injury. ' '  {Miller 
v.  Bapids  Sash  and  Door  Co.,  153  Iowa, 
735,  134  X.  W.  411.) 

^  133.  The  burden  is  upon  plaintiff  to 
show  negligence  of  defendant  and  that  his 
negligence  was  the  proximate  cause  of  the 
injury.  {Aslicraft  v.  Locomotive  Works, 
148  Iowa,  420,  126  N.  AV.  1111.)  Leading 
case :  Cumminys  v.  Ins.  Co.,  153  Iowa,  579, 
134  N.  W.  79,  30  Ann.  Cas.  235. 


56  DOCTRINE    OF 


SECTION  18. 

KANSAS. 

%  134.  ' 'In  an  action  to  recover  the  value 
of  an  express  package  that  was  stolen,  it 
was  for  the  jury  to  say  whether  the  negli- 
gence of  the  express  company  was  the  prox- 
imate cause  of  the  loss."  {Filson  v.  Ex- 
press Co.,  84  Kan.  614,  114  Pac.  863.) 

%  135.  ' '  Where  a  carrier  wrongfully  re- 
fuses to  deliver  goods  on  demand  their  sub- 
sequent destruction  by  act  of  God  will  not 
relieve  the  carrier  from  liability. ' '  {Henry 
v.  Railway  Co.,  83  Kan.  104,  109  Pac.  1005, 
28L.  R.  A.  (N.  S.)  1088.) 

%  136.  Alienation  of  affection.  {Poivers 
v.  Sumhler,  83  Kan.  2,  110  Pac.  97.) 

51 137.  Violation  of  statute  in  employing 
minor  held  to  be  proximate  cause  of  injury. 
{Casteel  v.  Brick  Co.,  83  Kan.  534, 112  Pac. 
145.) 

5[  138.  ' '  The  evidence  justified  a  finding 
that  a  real  estate  agent  was  the  procuring 
cause  (proximate  cause)  of  a  sale."  {Klu- 
her  V.  Shannon,  83  Kan.  790,  112  Pac.  626.) 


PROXIMATE    CATJSE.  57 

f?ec.   IS.  Kansas. 

5[  139.  '' Defendant's  antomobile  friglit- 
ened  plaintiff's  horse  and  she  was  injured, 
it  was  for  jury  to  say  whether  defendant's 
negligence  was  the  proximate  cause  of  the 
injury,"  {McDonald  v.  Yoder,  80  Kan.  25, 
101  Pac.  4G8.) 

51  140.  "Where  a  sale  of  real  estate  was 
effected  b}-  the  joint  efforts  of  two  agents 
with  Aviiom  it  had  been  listed  the  commis- 
sion was  due  to  the  one  who  was  the  proxi- 
mate cause  of  the  sale."  {Votaiv  v.  Mc- 
Ke&ver,  76  Kan.  870,  92  Pac.  1120.) 

5[  141.  Ordinarily  the  (piestion  of  proxi- 
mate cause  is  one  for  the  jury,  but  where 
the  facts  are  undisputed,  and  the  court  can 
see  that  the  resulting  injury  was  not  prob- 
able but  remote,  it  is  the  duty  of  the  court 
to  determine  the  question  of  proximate 
cause  and  not  send  it  to  a  jury.  {Home  Oil 
and  Gas  Co.  v.  Dahney,  79  Kan.  820,  102 
Pac.  488.) 


58  DOCTRINE    OF 


SECTION  19. 

kentucky. 

Defined. 

5[  142.  ' '  A  proximate  cause  is  that  cause 
which  naturally  led  to  and  which  might 
have  been  expected  to  produce  the  result." 

''An  act  or  omission  may  yet  be  negli- 
gent and  of  a  nature  to  charge  a  defendant 
with  liability,  although  no  injuries  would 
have  been  sustained,  but  for  some  inter- 
vening cause,  if  the  occurrence  of  the  latter 
might  have  been  anticipated."  {Beiser  v. 
(7.  N.  0.  d-  T.  P.  Rij.  Co.,  152  Ky.  522,  153, 
S.  W.  742.) 

^143.  ''Where  the  defendant  is  negli- 
gent and  its  negligence  is  the  proximate 
cause  of  the  injury  there  may  be  a  recovery, 
although  there  is  concurrent  negligence  of 
a  fellow  servant. ' '  (L.  d  N.  R.  Co.  v.  Grass- 
man,  147  Ky.  739,  144  S.  W.  1099.) 

%  144.  "Where  there  is  room  for  differ- 
ence of  oioinion  between  reasonable  men  as 
to  what  is  the  proximate  cause  of  an  in- 
jury, the  question  is  one  for  the  jury;  but. 


PROXIMATE    CAUSE.  59 

Sec.  JO.  Kentucky. 

where  there  is  no  room  for  difference  of 
o])inion,  the  question,  where  the  facts  are 
undisputed,  is  for  the  court."  {Keiffer  v, 
L.  d-  N.  R.  Co.,  132  Ky.  419, 113  S.  W.  433.) 

^[  145.  AVhere  one  dies  of  blood  poison- 
ing, superinduced  by  the  sting  of  a  poison- 
ous insect  or  reptile,  the  sting  is  the  proxi- 
mate cause  of  his  death.  {Omherg  v.  Acci- 
dent Association,  101  Ky.  303,  40  S.  W. 
909,  72  Amer.  State  413.)  Leading  case: 
Walker  v.  Collinsivorth,  144  Ky.  3,  137  S. 
W.  766,  44  L.  R.  A.  (N.  S.)  299 


60  DOCTRINE    OF 


SECTION  20. 

LOUISIANA. 

%  146.  ' 'Where,  in  an  action  for  damages 
to  an  orange  grove  by  cattle  *  *  *  prox- 
imate cause  of  the  damage  was  held  to  be 
a  storm,  which  devastated  the  country 
*  *  *  destroying  fences,  so  as  to  permit 
cattle  to  run  at  large."  {Russell  v.  Fer- 
nandez, 131  La.  76,  59  So.  20.) 

51 147.  ' '  Proximate  cause  of  damage  to  a 
dam  held  to  be  the  nature  of  the  soil  be- 
neath the  foundation,  and  not  the  construc- 
tion of  the  work  above."  {Blodgett  Const. 
Co.  V.  Cheney  Lumber  Co.,  129  La.  1057, 
57  So.  369.) 

^148.  "Proximate  cause  of  an  engi- 
neer's death  by  running  into  an  open  switch 
held  to  be  the  act  of  a  train  wrecker  in 
opening  the  switch,  so  that  the  company 
was  not  liable  for  his  death."  {McDaniel 
v.  A.  L.  d-  G.  Ry.  Co.,  127  La.  757,  53  So. 
981.) 

5[  149.  "One  who  creates  a  danger  which 
sooner  or  later  will  cause  an  injury,  is  re- 


PROXIMATE    CAUSE.  61 

Sec.  20.  Louisiana. 

sponsible  for  the  injury  resulting,  for  the 
judicial  cause  is  the  creation  of  the  dan- 
ger, unless  an  intervening  voluntary  act 
of  some  i3erson  responsible  for  his  act  is 
shown,"  {Lee  v.  Powell,  <:Gc.,  12G  T.a.  51, 
52  So.  214.) 


62  DOCTRINE    OF 


SECTION  21. 

MAINE. 

%  150.  "The  driver  [of  a  team]  not  only 
having  negligently  put  himself  in-  a  place 
of  peril,  but  having  continued  negligently 
to  move  on  to  the  catastrophe  until  it  hap- 
pened, his  negligence  was  the  proximate 
cause  of  the  injury,  and  any  negligence  of 
the  motorman  in  charge  of  the  electric  car 
was  not  independent  of  the  driver's  con- 
tributory negligence,  but  contemporaneous 
with  it,  and  the  doctrine  of  discovered  peril 
does  not  apply. ' '  {Pliilhrick  v.  A.  S.  L.  Ry., 
107  Me.  429,  78  Atl.  481. 

^151.  "Thoughtless  inattention"  held 
to  be  the  ''essence  of  negligence,"  and  the 
proximate  cause,  on  the  part  of  an  auto- 
mobile driver,  of  damage  done  by  a  fright- 
ened horse.  {Toivle  v.  Morse,  103  Me.  250, 
68  Atl.  1044.) 

5[  152.  Long  delay  before  the  dislocation 
of  plaintiff 's  shoulder  was  reduced,  was  the 
proximate  cause  of  paralysis,  and  the  de- 
fendant surgeon  was  held  liable  in  dam- 


PROXIMATE    CAUSE.  63 

Sec.  21.  Maine. 

ages  for  the  delay.     {Hastings  v.  Stetson, 
91  Me.  229,  39  Ati.  580.) 

5[  153.  "The  doctrine  of  prior  and  sub- 
sequent negHgenee  is  not  applicable  when 
the  negligence  of  the  i)laintiff  and  that  of 
the  defendant  are  practically  simultane- 
ous." {Butler  V.  Raihvmj,  99  Me.  149,  58 
Atl.  775.)  Other  leading  cases :  Cleveland 
V.  Bangor,  87  Me.  259,  32  Atl.  892,  47  Amer. 
State  326. 


64  DOCTRINE    OF 

SECTION  22. 

MARYLAND. 

5[  154.  ''The  negligence  alleged  and  the 
injury  sued  for  must  bear  the  relation  of 
cause  and  effect.  The  concurrence  of  both 
and  the  nexus  between  them  must  exist  to 
constitute  a  cause  of  action."  {Coughlin 
V.  Blaul,  120  Md.  28,  87  Atl.  766.)  Ante 
§  10,  H  70. 

5[  155.  ''If  a  gas  company  is  negligent 
in  suffering  the  escape  of  gas  or  in  not  dis- 
covering such  escape  when  warned  of  it, 
and  a  policeman,  in  searching  for  the  leak 
with  a  lighted  candle,  causes  an  explosion, 
the  escape  of  the  gas,  and  not  the  lighted 
candle,  is  the  proximate  cause  of  such  ex- 
plosion." 

"The  failure  of  the  property  owner  and 
his  agent  to  inspect  the  j^remises,  when  by 
so  doing  they  might  have  discovered  the  es- 
caping gas,  is  not  contributory  negligence. 
*  *  *"  {Consol.GasCo.v.GeUy,96Md. 
683,  54Ath666.) 

51 156.  ' '  By '  i^roximate  cause '  is  intended 
an   act  which  directly  produced,   or  con- 


PROXIMATE    CAUSE.  65 

Sec.  22.  Maryland. 

curred  directly  in  producing,  tlie  injury. 
By  'remote  cause'  is  intended  that  which 
may  have  ha]ipenod,  and  yet  no  injury  liave 
occurred,  notwithstanding  that  no  injury 
could  have  occurred  if  it  had  not  happened. 
No  man  would  ever  have  been  killed  on  a 
railway,  if  he  had  not  gone  on  or  near 
the  track.  J5ut  if  a  man  does,  imprudently 
and  incautiously,  go  on  a  railroad  track, 
and  is  killed  or  injinx'd  by  a  train  of  cars 
the  company  is  responsible,  unless  it  has 
used  reasonable  care  and  caution  to  avert 
it,  provided  the  circumstances  were  not 
such  when  the  ])arty  went  on  the  track  as 
to  threaten  direct  injury,  and  provided  that 
Ijoing  on  the  track  he  did  nothing,  ])ositive 
or  negative,  to  contribute  to  the  immediate 
injury."  {B.  d  0.  R.  Co.  v.  Sfate  Use,  Etc., 
33  Md.  542 ;  29  Md.  421 ;  31  Md.  357.) 


66  DOCTRINE    OF 

SECTION  23. 

MASSACHUSETTS. 

%  157.  A  case  in  which  the  wrongful  con- 
duct of  a  dog,  in  causing  an  automobile  to 
skid  to  its  injury,  was  the  proximate  cause 
and  the  owner  of  the  dog  was  held  liable. 
{Williams  v.  Brennan,  213  Mass.  28,  99 
N.  E.  516.) 

51 158.  Negligence,  Due  care  of  child, 
Violation  of  statute  *  *  *  Employer's 
liability,  Proximate  cause  *  *  *  [Ber- 
dos  V.  T.  d  S.  Mills,  209  Mass.  489,  95  N.  E. 
876.) 

^159.  Real  estate  agent's  services  held 
to  be  proximate  cause  of  sale,  and  he  en- 
titled to  commission.  {Games  v.  Finigan, 
198  Mass.  128,  84N.  E.  324.) 

51 160.  ^'One,  who  suffers  injuries  while 
so  intoxicated  as  to  be  incapable  of  stand- 
ing or  walking  or  taking  care  of  himself 
in  any  way,  may  maintain  an  action  against 
a  person  whose  negligence  in  view  of  his 
manifest  condition  was  the  direct  and  prox- 
imate cause  of  his  injury."  {Black  v.  Rail- 
road, 193  Mass.  448,  79  N.  E.  797,  7  L.  R.  A. 
(N.  S.)  148.) 


PROXIMATE    CAUSE.  67 

Sec.  2S.  Massachusetts. 

5[161.  ''In  an  action  by  a  workman 
against  his  employer  for  injuries  from  the 
boom  of  a  derrick  falling  upon  him,  if  there 
is  evidence  warranting  a  finding  that  the 
accident  was  caused  by  a  defect  in  the  der- 
rick, and  there  also  is  evidence  from  which 
the  jury  might  infer  that  the  accident  was 
caused  by  the  negligence  of  a  fellow  servant 
of  the  plaintiff,  the  question  *  *  *  of 
proximate  cause  *  *  *  is  for  the  jury 
*  *  *  upon  proper  instructions  from  the 
presiding  judge  as  to  the  meaning  of  'prox- 
imate cause.'  "  {Butler  v.  N.  E.  S.  Co., 
191  Mass.  397,  77  N.  E.  764.) 

%  162.  A  horse,  carefully  driven,  became 
frightened  by  a  defect  in  the  highway,  freed 
himself  from  the  control  of  his  driver,  and 
fifty  rods  from  the  defect  knocked  down  a 
person  on  foot  in  the  highway,  who  was 
using  reasonable  care.  The  authority 
charged  with  keeping  the  highway  in  re- 
pair is  not  responsible  to  the  person 
knocked  down,  though  no  other  cause  in- 
tervened between  the  defect  and  the  in- 
jury. 

General  Rule;  "The  general  rule  of 
law,    *     *     *    is  that  where  two  or  more 


G8  DOCTRINE    OF 

Sec.  23.  MassaclDisctts. 

causes  concur  to  produce  an  effect,  and  it 
cannot  be  determined  which  contributed 
most  largely,  or  whether,  without  the  con- 
currence of  both,  it  would  have  happened 
at  all,  and  a  particular  party  is  responsible 
only  for  the  consequences  of  one  of  these 
causes,  a  recovery  cannot  be  had,  because 
it  cannot  be  judicially  determined  that  the 
damage  would  have  been  done  without  such 
concurrence,  so  that  it  cannot  be  atfributed 
to  that  cause  for  which  he  is  answerable. ' ' 
{Marble  v.  City  of  Worcester,  4  Gray,  395, 
397;  Cooley  on  Torts,  p.  78,  note  1.) 

51 163.  A  boy  bought  some  gunpowder 
without  the  knowledge  or  consent  of  his 
parents,  and  put  it  in  a  cupboard  in  his 
father's  house  with  the  knowledge  of  his 
aunt,  who  had  charge  of  the  house  while 
his  parents  were  away;  a  week  later  his 
mother  gave  him  some  of  the  powder  and 
he  fired  it  with  her  knowledge;  and  later 
he  took,  with  her  knowledge,  more  of  the 
powder,  fired  it  off  and  was  injured  by  the 
explosion. 

"Held,  That  the  injury  was  not  the  di- 
rect or  proximate,  natural  or  probable,  re- 


PROXIMATE    CAUSE.  69 

Sec.  23.  Massachusetts. 

suit  of  the  sale  of  the  powder,  and  the  seller 
was  therefore  not  liable  to  the  child  for 
the  injury."  {Carter  v.  Towne,  193  Mass. 
507.) 

5[  164.  ''The  injury  must  be  the  direct 
result  of  the  misconduct  charged;  but  it 
will  not  be  considered  too  remote  if,  accord- 
ing to  the  usual  experience  of  mankind,  the 
result  ought  to  have  been  apprehended. 
The  act  of  a  third  person,  intervening  and 
contributing  a  condition  necessary  to  the 
injurious  effect  of  the  original  negligence, 
will  not  excuse  the  first  wrongdoer,  if  such 
act  ought  to  have  been  foreseen.  The  origi- 
nal negligence  still  remains  a  culpable  and 
direct  cause  of  the  injury. 

The  Test:  The  test  is  to  be  found  in 
probable  injurious  consequences  which 
were  to  be  anticipated,  not  in  the  number 
of  subsequent  events  and  agencies  which 
might  arise."  {Lane  v.  Atl.  Works,  111 
Mass.  136.)  Leading  case  on  negligence 
of  children:  McDermott  v.  Railroad,  184 
Mass.  126,  68  N.  E.  34,  100  Amer.  State, 
548. 


70  DOCTRINE    OF 

SECTION  24. 

MICHIQAlf. 

%  165.  Plaintiff  was  driving  his  horse 
across  railroad  tracks,  saw  train  api^roach- 
ing,  urged  his  horse;  but  the  locomotive 
whistle  frightened  the  animal  which  began 
prancing  instead  of  advancing  out  of  the 
way.  The  rear  end  of  wagon  was  struck 
by  the  train.  The  engineer  was  performing 
a  duty  in  blowing  the  whistle  which  blow- 
ing was  held  to  be  the  proximate  cause  of 
the  injury,  and  plaintiff  could  not  recover. 
{Cavanaugh  v.  M.  C.  R.  Co.,  175  Mich.  156, 
141  N.  W.  539.) 

5[  166.  Defendant  left  his  team  standing 
unhitched  across  a  footpath  in  an  unpaved 
street.  A  child  five  years  of  age  started 
upon  her  sled  and  coasted  down  the  path 
under  the  horses,  and  was  fatally  injured 
by  them.  Held,  That  the  act  of  defendant 
in  leaving  his  team  unguarded  across  the 
foot  path  was  not  the  proximate  cause  of 
the  injury.  {Stall  v.  Lauhengayer,  174 
Mich.  701,  140  N.  W.  532.) 

^167.  '' Negligence  of  the  driver  and 
owner  of  an  automobile,  contributing  to  a 


PROXIMATE    CAUSE.  71 

Sec.  2J,.  Michigan. 

collision  with  a  street  car,  will  be  imputed 
to  a  person  who  was  riding  with  the  owner 
of  the  motorcar."  Note. — This  is  true  in 
an  action  against  the  car  company,  but  not 
in  an  action  against  the  owner  and  driver 
of  the  motor  car.  {Kneeshmr  v.  D.  U.  /?//., 
1G9  Mich.  697,  135  N.  W.  903.) 


72  DOCTRINE    OF 


SECTION  25. 

MINNESOTA. 

^  168.  ' '  The  legal  duty  of  a  landlord,  as 
between  himself  and  his  tenant,  to  use  ordi- 
nary care  to  keep  in  repair  stairways  which 
are  retained  under  his  control,  extends  to 
and  includes  the  servants  of  the  tenant. ' ' 

Breaking  of  railing  was  held  to  be  the 
proximate  cause  of  plaintiff's  injury,  and 
the  landlord  was  liable.  {Williams  v.  Dick- 
son, 122  Minn.  49,  141  N.  W.  849.) 

51"  169.  ' '  AVhatever  may  have  been  the 
original  meaning  of  the  maxim,  'Causa 
proxi)}ia  et  non  remota  spectatur/  it  has 
been  clearly  settled,  by  a  long  line  of  de- 
cisions, that  what  is  meant  by  proximate 
cause  is  not  that  which  is  last  in  time  or 
place,  not  merely  that  which  was  in  activity 
at  the  consummation  of  the  injury,  but  that 
which  is  the  procuring,  efficient,  and  pre- 
dominant cause. ' '  (Riissel  v.  Ger.  Fire  Ins. 
Co.,  100  Minn.  528,  111  N.  W.  400,  10  L.  E. 
A.  (N.  S.)  326.) 

5[  170.  ''Plaintiff  was  riding  horseback 
in  a  public  street.     From  some  unknown 


PROXIMATE    CAUSE.  73 

Sec.  25.  Minnesota. 

cause  the  horse  took  fright  and  backed  some 
tliirty  or  forty  feet,  until  he  stepped  into 
a  wagonway  which,  extending  into  the 
street,  had  been  made  by  defendants  for  the 
purpose  of  moving  earth  from  a  cellar, 
which  they  were  excavating  on  their  own 
lots,  up  to  the  street  surface.  The  plaintiff 
then  fell  or  jumped  off,  and  was  pushed 
into  the  cellar  by  the  horse.  The  wagonway 
and  cellar  were  not  guarded  or  inclosed  at 
the  point  where  the  accident  occurred. 
Held,  that  the  fright  of  the  horse,  and  not 
the  failure  to  guard  or  inclose  the  excava- 
tion, was  the  proximate  cause  of  plaintiff's 
injury."  {La  Londe  v.  Peake,  82  Minn. 
124,  84  N.  W.  726.) 

^  171.  "Where  the  negligence  of  the  de- 
fendant and  the  act  of  a  third  person  con- 
curred to  produce  the  injury  complained  of, 
so  that  it  would  not  have  happened  in  the 
absence  of  either,  the  negligence  was  the 
proximate  cause  of  the  injury."  {Jolinson 
V.  Tel.  Co.,  48  Minn.  433,  51  N.  W.  225.) 

Defined. 

51 172.  "The  proximate  cause  of  an  in- 
jury, within  the  meaning  of  the  law  of  neg- 


74  DOCTRINE    OF 

Sec.  25.  Minnesota. 

ligence,  is  such  cause  as  operates  to  pro- 
duce particular  consequences  without  the 
intervention  of  any  independent  or  unfore- 
seen cause  or  event,  without  which  the  in- 
jury could  not  have  occurred — such  conse- 
quences as  might  reasonably  have  been  an- 
ticipated as  likely  to  occur  from  the  alleged 
negligent  act."  {Stroheck  v.  Bren,  93 
Minn.  428.)  This  definition  is  approved  in 
{Russell  V.  Fire  Ins.  Co.,  100  Minn.  534, 
111  N.  W.  400.) 


PROXIMATE    CAUSE.  75 


SECTION  26. 

MISSISSIPPI. 

^  173.  ''In  order  for  liability  for  an  in- 
jury to  be  fastened  on  a  defendant,  it  is 
necessary  that  its  negligence  should  be  the 
proximate  cause  of  the  injury,  and  to  con- 
stitute proximate  cause  there  must  be 
causal  connection  between  the  injury  and 
the  negligence."  {Billingsley  v.  I.  C.  R.  R. 
Co.,  100  Miss.  612,  56  So.  790.) 

51 174.  *' Where  a  defendant  is  negligent 
and  his  negligence  combines  with  that  of 
another,  or  with  any  other  independent  in- 
tervening cause,  he  is  liable,  although  his 
negligence  was  not  the  sole  negligence  or 
the  sole  proximate  cause,  and  although  his 
negligence  without  such  other  independent 
intervening  cause  would  not  have  produced 
the  injury."  {Cumh.  Tel.  &  Tel.  Co.  v. 
Woodham,  99  Miss.  318,  54  So.  890.) 

51175.  '' Appellant  was  the  owner  of  a 
handsome  residence  situated  in  the  City  of 
Jackson,  and  had  installed  therein  in  the 
bath  room  a  device  known  in  this  record  as 
an  '■  instantaneous  gas  heater, '    This  heater 


70  DOCTRINE    OF 

Sec.  26.  Mississippi. 

was  so  arranged  that  it  was  comparatively 
safe  as  long  as  there  was  a  continuous  flow 
of  water,  hut  highly  dangerous  if  left  burn- 
ing after  the  water  supply  had  ceased.  On 
a  certain  afternoon  appellant  had  lighted 
the  gas  and  turned  on  the  water,  and  then 
left  the  bath  room  for  a  few  moments.  Dur- 
ing her  absence  the  flow  of  water  ceased, 
and  as  a  result  the  house  was  set  afire  and 
substantial  damage  resulted.  The  cessation 
in  the  flow  of  water  was  due  to  the  fact  that 
the  water  company,  in  order  to  repair  a 
leaking  hydrant,  had  cut  off  the  water  along 
the  street  in  front  of  appellant's  residence, 
and  no  notice  of  the  intention  so  to  do  had 
been  given.  The  flow  of  water  was  sus- 
pended for  about  half  an  hour. ' '  The  water 
company  had  no  notice  of  the  fact  that  the 
heater  had  been  installed. 

Held  ;  ' '  The  damage  resulted,  not  proxi- 
mately through  the  failure  of  the  company 
to  supply  water,  but  because  of  the  inter- 
position of  an  unfamiliar  mechanism,  the 
existence  of  which  was  unknown  to  the  com- 
panv."  {Brame  v.  Light,  H.  d  W.  Co.,  95 
Miss.  26,  48  So.  728.)     20  Ann.  Gas.  1293. 


PROXIMATE    CAUSE.  77 


SECTION  27. 


MfSSOVJil. 

5[  176.  ''The  proximate  cause  of  an 
event  is  that  wliicli,  in  natural  and  con- 
tinuous sequence,  unbroken  by  any  new 
cause,  produces  the  event,  and  without 
which  the  event  would  not  have  occurred. ' ' 
{Kaiie  V.  Railroad,  251  Mo.  13,  157  S.  AV. 
644.) 

%  177.  A  servant  injured  by  a  defective 
chiw-bar  by  throwing  his  whole  weight 
upon  it,  falling  when  the  claw-bar  let  go: 
His  own  negligence  was  held  to  be  the 
proximate  cause  of  his  injury.  {Harris  v. 
Railroad,  250  Mo.  567, 157  S.  W.  564.) 

^178.  ''There  is  a  distinction,  both  in 
law  and  in  common  usage,  between  the 
terms  'hazardous'  and  'extra  hazardous.'  " 
(Jackson  v.  Butler,  249  Mo.  342,  155  S.  W. 
1071.) 

^179.  "Whether  or  not,  under  all  the 
circumstances,  the  negligence  of  the  master 
or  the  negligence  of  the  servant  was  the 
proximate  cause  of  the  injury,  is,  in  all 
cases  where  there  is  any  doubt,  a  question 


78  DOCTRINE    OF 

See.  27.  Missouri. 

for  the  jury."    {Yost  v.  Railroad,  245  Mo. 
219,  149,  S.  W.  577.) 

5[  180.  "The  plaintiff  was  employed  by 
defendant  to  operate  a  stamping  machine. 
He  noticed  a  defect  in  the  machine  and 
called  foreman's  attention  to  it  and  was 
told  to  go  ahead  with  the  work.  In  an 
action  for  injm'ies  sustained  by  the  plain- 
tiff soon  afterwards,  held,  that  defendant 
was  aware  of  the  danger  to  plaintiff  and 
was  negligent  in  ordering  him  to  continue 
operating  the  machine." 

Held  also,  that  the  defect  in  the  machine 
was  the  proximate  cause  of  plaintiff's  in- 
jury. {Tsoulfas  V.  N.  E.  c6  S.  Co.,  139  Mo. 
App.  141,  120  S.  W.  1188.) 

Leading  case:  Ward  v.  Ely-Walker  Co., 
248  Mo.  348,  154  S.  W.  478,  45  L.  R.  A.  (N. 
S.)  550. 


PROXIMATE    CAUSE.  79 


SECTION  28. 

2I0NTAXA. 

51181.  "To  enable  plaintiff  *  *  *  * 
to  recover  damages,  he  must  show  tliat  the 
negligence  charged  was  a  proximate  cause 
of  the  injury  *  *  *  *  ^  cause  which  in  a 
natural  and  continuous  sequence  unbroken 
by  any  new,  independent  cause,  produced 
the  injury,  and  without  wliidi  it  would  not 
have  occurred." 

"A  cause  wliicli,  in  intervening  between 
defendant's  negligence  and  jjlaintiff's  in- 
jury, will  break  the  chain  of  sequence  of 
the  former's  wrongful  act  and  relieve  him 
from  liability  therefor,  is  one  which  could 
not  have  been  foreseen  or  anticipated  by 
him  as  a  probable  consequence  of  his  negli- 
gence." {Therriault  v.  England,  43  Mont. 
376,  116  Pac.  581.)  {Mize  v.  Tel.  Co.,  38 
Mont.  521, 100  Pac.  971, 16  Ann.  Cas.  1189.) 

51 182.  "Where  plaintiff's  own  act  is  a 
proximate  cause  of  his  injury,  he  must  al- 
lege and  prove  that  in  doing  the  particular 
act  he  was  moved  by  those  considerations 
for  his  own  safetv  which  would  actuate  a 


80  DOCTRINE    OF 

Sec.  28.  Montana. 

reasonably  prudent  person,  similarly  situa- 
ted, to  do  as  lie  did."  {Nils on  v.  Citi/  of 
K.,  47  Mont.  416,  420,  Citing  Kennon  v. 
Gilmer,  4  Mont.  433,  2  Pac.  21 ;  Badovinac 
V.  Railroad,  39  Mont.  454, 104  Pac.  543,  and 
Lyons  v.  Railroad,  43  Mont.  317,  24  Ann. 
Cas.  183,  117  Pac.  81.) 


PROXIMATE    CAUSE.  81 


SECTION  29. 


NEBRASKA. 

^[183.  "The  pJaintiff's  negligence  will 
not  defeat  a  recoveiy  unless  it  was  the  sole 
cause  of  the  plaintiff's  injury,  or  concurred 
or  co-operated  with  the  defendant's  negli- 
gence as  a  proximate  cause  of  the  acci- 
dent." {McGahey  v.  Railroad,  88  Neb.  218, 
129  N.  AV.  293.) 

^  184.  "If  the  employment  of  an  infant 
*  *  *  contrary  to  *  *  *  a  statute,  is 
the  jjroximate  cause  of  an  injury  to  the 
child,  his  master  is  liable  therefor."  {Hank- 
ins  V.  Reimers,  86  Neb.  307, 125  N.  W.  516.) 

5[  185.  ' '  The  negligence  of  one  who  care- 
lessly i)laces  himself  in  a  position  exposed 
to  danger  cannot  as  a  matter  of  law  be  said 
to  be  the  proximate  cause  of  an  injury,  if 
his  position  was  discovered  in  time  to  avoid 
the  injmy  by  the  use  of  reasonable  care, 
and  such  care  was  not  exercised."  {Rail 
road  V.  Lilley,  82  Neb.  511,  118  N.  W.  103.) 

^186.  "One  who  has  suffered  a  direct 
injury  by  the  unlawful  or  criminal  act  of 
another  may  maintain  an  action  for  the 


82  DOCTRINE    OF 

Sec.  29.  Nebraska. 

recovery  of  damages  sustained ;  but  the  un- 
lawful sale  of  a  poisonous  drug  to  a  minor 
eighteen  years  of  age,  a  quantity  of  which 
was  by  said  minor  administered  to  another 
minor  to  his  injury,  does  not  create  a  cause 
of  action  in  favor  of  the  father  of  the  latter 
(against  the  druggist)  ********* 
as  it  cannot  be  said  the  defendant  might 
reasonably  have  anticipated  that  such  use 
would  be  made  of  the  drug"   *****   *^ 

^  187.  ' '  The  illegal  sale  of  croton  oil  was 
not  the  immediate  and  proximate  cause  of 
the  injury  of  which  the  plaintiff  complains. 
That  injury  arose,  not  from  the  sale  of  the 
oil,  but  from  putting  it  upon  the  pie  which 
plaintiff's  son  was  induced  to  eat  by 
another  and  independent  agency — the  act 
of  Barron,  the  purchaser."  (McKibhin  v. 
Bax  &  Co.,  79  Neb.  577,  581,  113  N.  W.  158, 
13  L.  E.  A.  (N.  S.)  646.) 


PROXIMATE    CAUSE.  83 


SECTION  30 

NEVADA. 

5[  188.  A  i)roper  instruction :  "  Jn  order 
that  negligence  on  the  part  of  the  plaintiff, 
may  defeat  his  recovery,  such  negligence 
must  be  a  proximate  cause  of  his  damage 
and  contribute  thereto.  If  his  negligence 
is  remote,  and  without  it  he  still  would  have 
suffered  the  damage,  then  it  is  not  contribu- 
tory in  the  sense  of  the  law."  {O'Connor 
V.  Ditch  Co.,  17  Nev.  245.) 

51 189.  "The  rule  of  law,  which  releases 
a  defendant  from  responsibility  for  dam- 
ages caused  by  his  negligence  when  there 
is  contributory  negligence  on  the  part  of 
the  plaintiff,  is  limited  to  cases  where  the 
act  or  omission  of  plaintiff  was  the  proxi- 
mate cause  of  the  injury."  {Loganbaugh 
V.  EaUroad,  9  Nev.  271./ 

5[  190.  Comparing  " immmediate'^  and 
'^ proximate"  as  used  by  the  trial  judge  in 
an  instruction,  the  Court  says:  "Proxi- 
mate Cause  is  oftener  used,  and  is  prob- 
ably better,  yet  it  means  that  which  imme- 
diately precedes  and  produces  the  effect 


84  DOCTRINE    OP 

Sec.  30.  Nevada. 

as  distinguished  from  remote.  In  examin- 
ing the  authorities  it  will  be  found  that 
'immediate'  and  'proximate'  are  indiscrim- 
inately used  to  express  the  same  meaning." 
{Loganhaiigh  v.  Va.  City  T.  Co.,  9  Nev. 
271,  294.) 

Leading  Case:     Murioliy  v.  So.  P.  Co., 
31  Nev.  120, 101  Pae.  322,  21  Ann.  Cas.  502. 


PROXIMATE    CAUSE.  85 

SECTION  31. 

NEW  HAMPSHIRE. 

^  191.  *' Let  dogs  delight  to  bark  and  bite, 
For  God  hath  made  them  so ' ' 
truly  expresses  the  nature  of  such  animal. 
A  man  who  irritates,  abuses,  or  cruelly 
treats  a  dog  excites  into  active  operation 
against  himself  these  natural  forces,  which, 
until  the  exciting  cause,  were  dormant  and 
harmless ;  and  if  he  receives  an  injury  from 
the  dog  when  thus  excited,  he  receives  it  as 
truly  from  his  own  act  as  he  would  if  he 
shot  himself,  or  did  himself  bodily  harm  by 
exciting  into  activity  any  other  of  nature's 
forces.  He  cannot  recover  damages  of  the 
owner  of  the  instrument  which  he  uses  wil- 
fully or  recklessly  to  his  injury."  {Qidmhy 
V.  Woodbury,  63  N.  H.  370.)  ^ 

^  192.  ' '  The  term  jDroximate  cause  was 
substantially  the  same,  originally,  as  the 
causa  causans,  or  the  cause  necessarily  pro- 
ducing the  result.  But  the  practical  con- 
struction of  the  term  by  the  courts  has  now 
come  to  be — the  cause  which  naturally  led 
to,  and  which  might  have  been  expected  to 
produce,  the  result."  (State  v.  Railroad, 
52  N.  H.  528.) 


86  DOCTRINE    OF 


SECTION  32. 

NEW  JERSEY. 

5[  193.  ''In  cases  where  fire  is  negli- 
gently started,  bnt  is  not  immediately  com- 
municated to  the  property  destroyed,  but 
is  communicated  from  one  building  to 
another  until  it  reaches  the  property  de- 
stroyed, causal  connection  will  only  cease 
when,  between  the  negligence  and  the  dam- 
age, an  object  is  interposed  which  would 
have  prevented  the  damage,  if  chie  care  had 
been  taken." 

"Where  a  fire  originates  in  the  careless- 
ness of  a  defendant,  and  is  carried  directly 
by  a  material  force,  whether  it'be  the  wind, 
the  law  of  gravitation,  combustible  matter 
existing  in  a  state  of  nature,  or  a  running 
stream,  to  the  plaintiff's  property,  and  de- 
stroj^s  it,  defendant  is  legally  answerable 
for  the  loss."  {Kulin  tC-  Neeh  v.  Railroad, 
32  N.  J.  Eq.  647.) 

^194.  "If  the  deceased,  acting  in  good 
faith,  and  without  negligence  on  her  part, 
attended  to  such  household  duties  as  she 
thought  she  might  prudently  perform,  and 


PROXIMATE    CAUSE.  87 

Sec.  32.  New  Jersey. 

in  so  doing  produced  a  hemorrhage  from 
the  original  wound  slie  had  i-oceived  as  a 
result  of  the  negligence  of  the  defendant, 
from  which  death  ensued,  the  defendant  is 
not  tliere})y  relieved  of  the  consec^uences 
of  its  wrongful  act."  {Batton  v.  P.  S.,  C, 
75  N.  J.  Law,  857,  69  Atl.  164,  18  L.  R. 
A.  (N.  S.)  640.) 

5[  195.  "An  express  wagon,  driven  by  a 
servant  of  the  defendant  along  a  public 
highway,  struck  the  hind  wheel  of  a  wagon 
that  was  being  h)aded  from  the  sidewallv, 
forcing  it  against  the  horse,  which  was 
standing  unhitched  in  the  street,  whereat 
the  horse  took  fright  and  ran  away.  To 
avoid  being  struck  by  the  runaway  horse, 
the  plaintiff  jumped  aside  and  broke  his 
leg  over  a  board  i)ile  in  the  street,  where- 
upon he  sued  the  defendant — Express  Com- 
pany-— and  was  non-suited.  Held,  that  the 
non-suit  was  erronious." 

"The  striking  of  the  standing  wagon  by 
the  defendant's  wagon  was  imquestionably 
the  initial  force  that  set  in  motion  the  train 
of  circumstances  by  which  the  plaintiff  was 
injured,  none  of  which  had  their  rise  in  any 


88  DOCTRINE    OF 

Sec.  32.  New  Jersey. 

intervening  force  or  other  cause.  The 
board  pile  over  which  the  plaintiff  fell, 
while  it  was  a  condition  of  his  injury,  was 
not  its  cause."  {Collins  v.  Express  Co., 
72  N.  J.  L.  231,  62  Atl.  675,  5  L.  R.  A.  (N. 
S.)  373,  Citing  21  Am.  &  Eng.  Ency.  Law 
492,  494;  Belles  v.  Kellner,  38  vroom  255, 
and  Scott  v.  Sheplierd,  1  Smith's  Leading 
cases,  754 — which  is  the  English  Squib 
case.) 

Note.  The  decision  in  Collins  v.  Express 
Co.,  is  open  to  doubt.  The  foresight  en- 
joined by  it  seems  extraordinary.  See 
Hohhs  v.  Railroad;  Murdoch  v.  Railroad, 
cited  in  section  57,  and  Marble  v.  City  of 
Worcester,  cited  in  section  23. 


PROXIMATE    CAUSE.  89 

SECTION  33. 

NEW  MEXICO. 

5[  196.  'Mt  was  not  the  iuteiitiou  oi"  the 
legislature,  in  the  enactment  of  sections 
2308,2310,  *  *  *  *  to  change  the  common 
law  rule  exempting  a  master  from  liability 
to  his  servant  for  the  negligence  of  a  fel- 
low servant." 

"AVliere  *  *  *  the  declaration  alleged 
that  defendant  failed  to  furnish  the  de- 
ceased *  *  *  with  a  properly  constructed 
car  *  *  *  ]3ut  instead  thereof  wrong- 
fully, negligently,  and  over  deceased's  pro- 
test, furnished  him  with  an  unsafe  box 
car  without  doors  or  windows  in  the  ends, 
*  *  *  through  which  approaching  danger 
might  be  seen  and  averted  *  *  *  through 
the  negligence  of  its  servants,  one  of  de- 
fendant's trains  ran  against  the  rear  of  the 
train  driven  by  deceased,  broke  the  same 
into  splinters,  and  deceased  was  struck  by 
its  locomotive  and  flying  splinters  and  died 
from  the  effects  of  the  injuries  thus  re- 
ceived *****_  Held,  "The  proximate 
cause  of  the  accident  was  the  negligence  of 
the  fellow  sei'vants  operating  the  second 


90  DOCTRINE    OF 

Sec.  33.  New  Mexico. 

train,  not  the  failure  of  the  defendant  to 
furnish  a  proper  car.  The  action  cannot 
therefore  be  sustained.  Nor  could  it  be 
sustained  if  it  were  conceded  that  the  proxi- 
mate cause  was  the  joint  negligence  of  the 
deceased's  fellow  servants  and  the  failure 
of  the  defendant  to  furnish,  within  a  rea- 
sonable time,  a  proper  car."  {Lutz  v.  Rail- 
road, 16  N.  M.  496,  30  Pac.  912.) 


PROXIMATE    CAUSE.  91 


SECTION  34. 

NEW  YORK. 

1[197.  "Plaintiff's  intestate,  who  was 
severely  injured  by  a  taxicab  under  cir- 
cumstances justifying  the  finding  that  the 
defendant  was  guilty  of  and  plaintiff' 's  in- 
testate free  from  negligence,  died  the 
second  day  thereafter  of  delirium  tremens. 
A  physician  testified, '  I  should  say  with  rea- 
sonable certainty  the  injury  precipitated 
his  attack  of  delirium  tremens  ***** 
Held,  that  defendant's  negligence  was  the 
proximate  cause  of  the  death."  {McCahill 
V.  .V.  Y.  Trans.  Co..  201  N.  Y.  221,  94  X. 
E.  61(5.) 

%  198.  AVhere  several  proximate  causes 
contribute  to  an  accident,  and  each  is  an  ef- 
ficient cause,  without  which  the  accident 
would  not  have  happened,  it  may  be  attribu- 
ted to  all  or  any  of  them,  and  the  number 
of  proximate  causes  is  no  defense.  {Rossi- 
tcr  V.  Peter  C.  G.  Factory,  140  N.  Y.  Supp. 
296.) 

Other  leading  cases:     {Ring  v.  City,  11 


92  DOCTRINE    OF 

Sec.  34.  New  Yo7-lc. 

N.  Y.  83,  33  Amer.  R.  674:-Siveet  v.  Perkins, 
196  N.  Y.  483,  90  N.  E.  50.) 

^  199.  ' '  Where  an  agent  sent  a  telegram 
to  his  principal  for  authority  to  make  a 
contract,  and  the  telegram  in  reply  was  not 
in  response  to  the  telegram  sent,  but 
showed  an  error  in  the  transmission  of  one 
or  the  other  of  the  telegrams,  and  the  agent, 
without  receiving  authority  from  his  prin- 
cipal, made  the  contract,  causing  damages 
to  the  principal,  the  negligence  of  the  tele- 
graph company  *****  ^as  not  the 
proximate  cause  of  the  injury:  but  the  neg- 
ligence of  the  agent  in  making  the  contract, 
in  view  of  the  telegrams,  was  the  inter- 
vening proximate  cause. ' '  ( Willovghby  v. 
W.  U.  Tel.  Co.,  133  N.  Y.  S.  268.) 

5[  200.  ' '  If  a  railroad  company  negli- 
gently set  fire  to  wood  in  one  of  its  own 
sheds,  and  by  the  spreading  of  the  fire,  a 
dwelling  house,  at  a  distance  of  130  feet 
from  the  shed,  is  consumed,  the  company  is 
not  liable  for  the  loss ;  the  negligent  act  is 
not  the  proximate  cause  of  the  loss." 

'*A  house  in  a  populous  city  takes  fire, 


PROXIMATE    CAUSE.  93 

Sec.  3f,.  New  York. 

through  the  negligence  of  the  owner  or  his 
servant;  tlie  flames  extend  to  and  destroy 
an  adjacent  building:  Is  the  owner  of  the 
first  building  liable  to  the  second  owner  for 
the  damages  sustained  by  such  bui*ning?" 

The  (\)urt  answers  this  ({uestin  in  the 
negative,  and  holds  that  the  proximate 
cause  of  the  burning  of  the  first  house  was 
the  remote  cause  of  the  destruction  of  the 
second.  {Ryan  v.  Railroad,  35  N.  Y.  210, 
91  Amer,  D.  49.)  This  case  is  distinguished 
in  Loivry  v.  Ry.  Co.,  99  N.  Y.  1G4,  52  Amer. 
R.  12.)  This  decision  was  followed  and 
ax)proved  in  Penn.  R.  Co.  v.  Kerr,  62  Pa. 
St.  353.) 

f  201.  ''He  who  by  his  negligence  or 
misconduct  creates  or  suffers  a  fire  upon 
his  own  premises,  which,  burning  his  own 
property,  spreads  thence  to  the  immediate 
adjacent  premises  and  destroys  the  prop- 
erty of  another,  is  liable  to  the  latter  for 
the  damages  sustained  by  him."  {Wehb  v. 
Railroad,  49  N.  Y.  420,  10  Amer.  R.  389.) 

Note.  These  cases  of  Ryan  and  Webb 
are  said  to  be  in  harmonv.    In  the  second 


94  DOCTRINE    OF 

Sec.  SJf.  Neiv  York. 

the  court  refers  to  and  approves  the  doc- 
trine laid  down  in  the  first. 

In  support  of  the  Wehb  case  see  Higgins 
V.  Deivey,  107  Mass.  494,  9  Amer.  R.  63.) 

See  Laidlaiv  v.  Sage,  158  N.  Y.  73;  Leeds 
V.  New  York  Tel.  Co.,  178  N.  Y.  118. 


PROXIMATE    CAUSE.  95 


SECTION  35. 

north  carolina. 
Defined, 

f202.  ''The  proximate  cause  of  an 
event  must  be  understood  to  be  that  which 
in  natural  and  continuous  se(iuence,  un- 
broken by  any  new  and  independent  cause, 
produces  that  event,  and  without  which 
such  event  would  not  have  occurred.  Proxi- 
mately in  point  of  time  or  space,  however, 
is  no  part  of  the  definition."  (Ward  v.  Rail- 
road, 161  N.  C.  179,  7()  S.  E.  717.) 

%  203.  '  *  Neither  the  distance  traveled  by 
the  fire,  though  lands  of  other  parties  in- 
tervened, not  the  time  elaj^sing  between  the 
initial  fire  and  the  final  conflagration  which 
destroyed  the  plaintiff's  property,  is  con- 
clusive against  the  existence  of  proximate 
cause,  that  is,  that  the  second  fire  was 
proximately  caused  by  the  first.  The  con- 
nection of  cause  and  effect  must  be  estab- 
lished; the  breach  of  duty  must  not  only 
be  the  cause,  but  the  proximate  cause  of 
the  damage  to  the  complaining  party." 
(Hardy  v.  Lumber  Co.,  160  N.  C.  113,  75 
S.  E.  855.) 


96  DOCTRINE    OF 

Sec.  35.  North  Carolina. 

51 204.  Stump  in  street— plaintiff  thrown 
from  vehicle  in  the  night — electric  light  re- 
vealing stump — plaintiff  had  knowledge  of 
stump — ''Held,  the  injury  complained  of 
was  proximately  caused  by  the  inattention 
of  the  plaintiff"  *****,  (Otvens  v. 
Charlotte,  159  N.  C.  332,  74  S.  E.  748.) 

5[  205.  ''On  reaching  a  railroad  cross- 
ing, and  before  attempting  to  go  upon  the 
track,  a  traveler  must  use  his  sense  of 
hearing  to  the  best  of  his  ability  under  the 
existing  and  surrounding  circumstances — 
he  must  look  and  listen  in  both  directions 
for  approaching  trains,  if  not  prevented 
from  doing  so  by  the  fault  of  the  railroad 
company,  and  if  he  has  time  to  do  so ;  and 
this  should  be  done  before  he  has  taken  a 
position  exposing  him  to  peril  *  *  *  * 
this  being  required  so  that  his  precaution 
may  be  effective." 

"If  he  fails  to  exercise  proper  care  with- 
in the  rule  stated,  it  is  such  negligence  as 
will  bar  his  recovery:  Provided  always,  it 
is  the  proximate  cause  of  his  injury." 
{Johnson  v.  Railroad,  163  N.  C.  431,  79  S. 
E.  690.)  {Cooper  v.  Railroad,  16  N.  C.  150.) 


PROXIMATE    CAUSE.  97 

Sec:  So.  North  Carolbui. 

5[206.  *'WIien  under  the  express  terms 
of  a  policy  of  insurance  the  insurer  is  only 
liable  when  an  injuiy  results  from  acci- 
dental means  'directly  and  independently 
of  all  other  causes'  the  rule  of  })roximate 
cause,  as  api)lied  to  actions  of  negligence, 
will  not  be  applied"  *****,  {Penn.y. 
Ins.  Co.,  158  N.  0.-29,  73  S.  E.  99.) 

Leading  case :  Smith  v.  Railroad,  145  N, 
C.  98,  58  S.  E.  799,  122  Amer.  State,  423. 
See  Ahernathy  v.  Railroad,  1G4  N.  C.  91. 


98  DOCTRINE    OF 


SECTION  36. 

NORTH  DAKOTA. 

^207.  "In  an  action  in  negligence  the 
question  whether  the  alleged  fault  of  the 
defendant,  or  failure  on  his  part  to  perform 
a  legal  duty,  was  the  proximate  cause  of 
the  injury,  is  one  of  law  for  the  court,  to  be 
determined  upon  the  material  facts  pre- 
sented" *  *  *  *.  {Cihj  of  G.F.Y.Pauls- 
ness,  19  N.  D.  293,  123  N.  W.  878.) 

f  208.  ' '  In  order  to  disclose  a  cause  of 
action  for  deceit,  the  complaint  must  show 
that  the  loss  or  damage  was  the  proximate 
effect  caused  by  the  alleged  misrepresen- 
tations." {The  M.  McCartheij  Co.,  v.  Hal- 
lorau,  15  N.  D.  71,  106  N.  W.  293.) 

51209.  ''The  defendants,  *  *  *  en- 
camped in  a  vacant  house  *  *  *  in  an  open 
prairie.  A  prairie  fire  originated  near  the 
house,  and  threatened  its  destruction  *  * 
*  *.  A  back  fire  was  set  by  defendant  near 
the  house,  and  allowed  to  run  until  it  joined 
the  main  fire,  which  destroyed  the  property 
of  plaintiff's  intestate.  Held,  *  *  *  *  that 
the  original  fire  was  the  proximate  cause 


PROXIMATE    CAUSE.  99 

Sec.  36.  North  Dakota. 

of  the  loss."    (Otven  v.  Cook,  9  N.  D.  134, 
8  N.  W.  285,  47  T..  R.  A.  047.) 

^[210.  "It  is  only  when  but  one  con- 
elusion  can  reasonal)ly  be  drawn  from  eon- 
ceded  or  undisputed  facts  tliat  tlie  (juestion 
of  negligence  becomes  purely  a  question  of 
law."  {Ilecliman  v.  Evenson,  7  N.  D.  173, 
73  N.  W.  427.) 

Late  case:  Secker.'^ou  v.  Siiicldir,  24  N. 
1).  tJ25,  140  N.  W.  239. 


100  DOCTRINE    OF 


SECTION  37. 

OHIO. 

%  211.  "In  an  action  to  recover  damages 
for  injuries  sustained  through  the  negli- 
gence of  another,  the  law  regards  only  the 
direct  and  proximate  results  of  the  negli- 
gent act,  as  creating  a  liability  against  the 
wrongdoer. ' ' 

"In  contemplation  of  law,  an  injury  that 
could  not  have  been  foreseen  or  reasonably 
anticipated  as  the  probable  result  of  an  act 
of  negligence,  is  not  actionable."  {Miller 
V.  Railroad,  78  0.  S.,  309,  85  N.  E.  499.) 

51 212.  "What  was  the  proximate  cause 
of  an  injury,  is  usually  a  mixed  question 
of  law  and  fact;  but  where  the  controlling 
facts  are  conceded  or  found,  it  is  a  ques- 
tion of  law  for  the  court."  (Liidtke  v. 
Railroad,  69  0.  S.  384,  69  N.  E.  653.) 

5[213.  Where  a  railroad  employee  in 
the  course  of  his  work  places  a  torpedo  on 
the  track  and  leaves  it  unguarded  where  the 
public,  including  children,  has  been  accus- 
tomed to  pass,  and  a  boy,  in  passing  that 
way  finds  it,  and  not  knowing  what  it  is. 


ritoXLMATE    CAUSE.  101 

8cc.  37.  Ohio. 

shows  it  to  his  i)laymatos,  and  tlion  pro- 
ceeds to  01)011  it  causing  an  explosion  which 
injures  him:  The  (*onii)any  is  liable  on 
the  ground  tliat  tlie  negligent  act  of  its  em- 
])loyee  in  leaving  the  torjtedo  there  was  the 
proximate  cause  of  the  injury.  (Haninian 
V.  Railroad,  45  O.  S.  11,  1:^  X.  K.  4rjl.  4 
Amer.  St.  507.) 

^[214.  "In  an  action  against  a  mill 
owner  for  damages  to  i)roperty  caused  by 
fire  negligently  oi"  carelessly  tlirown  by 
sparks  from  the  smoke  staclv  of  the  mill  and 
carried  to  the  property  by  a  gale  of  wind 
blowing  at  the  time  in  the  direction  of  the 
property,  by  which  fire  the  same  was  dam- 
aged; where  the  conditions  continue  the 
same  as  when  the  neghgent  and  careless 
act  was  done,  and  no  new  cause  intervenes, 
it  is  no  defense  that  the  fire  first  burned  an 
intervening  building  and  was  thence  com- 
municated by  sparks  and  cinders  in  the 
same  manner  to  the  buildings  in  which  such 
fire  consumed  the  property,  though  the 
buildings  were  separated  by  a  space  of  two 
hundred  feet."  {Adams  v.  Young,  44  Ohio 
S.  80,  4  N.  E.  599,  58  Amer  R.  789.) 


102  DOCTRINE    OF 

Sec.  57.  Ohio. 

5[215.  ''A  railway  company,  by  its  train, 
unlawfully  obstructed  a  village  street.  S., 
therefore,  walked  around  the  rear  of  the 
train,  entered  another  street,  and  there, 
having  selected  one  of  several  routes  to  her 
home,  slipped  on  some  ice,  fell,  and  sus- 
tained serious  injury.  The  same  railway 
company  had  placed  the  ice  there  in  the 
process  of  clearing  its  track,  which  occu- 
pied part  of  the  street.  The  street  was  laid 
out  after  the  railway  was  in  use,  and  the 
rights  of  the  public  in  said  street  were  sub- 
ject to  the  rights  of  the  railway  company. 

Held  :  1.  The  proximate  cause  of  the  in- 
jury was  the  placing  of  the  ice  in  the  street. 

2.  If  the  railway  company  was  not  in 
fault  in  so  placing  the  ice,  it  was  not  liable 
for  the  injury  caused  by  the  fall."  {Rail- 
ivay  V.  Staley,  41  Ohio  S.  118.) 

Leading  case :  Miller  v.  Railroad,  78  0. 
St.  309,  85  N.  E.  499,  125  Amer.  State,  699. 


PROXIMATE    CAUSE.  103 


SFXTION  38. 

oklahoma. 

Last  Clear  Chance. 

f216.  ''The  doctrine  of  last  clear 
chance  is  recognized  by  the  courts,  as  an 
ex('('])ti()n  to  tlie  general  rule  that  the  con- 
tributory negligence  of  the  person  injured 
will  bar  a  recovery,  without  reference  to 
the  degree  of  negligence  on  his  part,  and 
under  this  excei)tion  to  the  rule  the  injured 
may  recover  danuiges  for  an  injury  result- 
ing from  the  negligence  of  the  defendant 
although  the  negligence  of  the  injured  per- 
son exposed  him  to  the  danger  of  the  in- 
jury sustained,  if  the  injury  was  more  im- 
mediately caused  by  the  want  of  care  on 
the  defendant's  part,  to  avoid  the  injury, 
after  discovering  the  peril  of  the  injured 
l^erson."  {Clark  v.  Railroad,  24  Okla.  764, 
108  Pac.  361.) 

^  217.  ' '  It  is  a  well  established  rule  that 
in  a  suit  for  damages  for  personal  injuries, 
although  the  defendant  may  be  shown  to 
have  been  negligent  in  some  manner,  yet, 
unless  the  negligence   so   shown  was   the 


104  DOCTRINE    OF 

Sec.  38.  Oklahoma. 

proximate  cause  of  the  injury  complained 
of,  no  recovery  can  be  had  on  account  of 
such  negligence."  {Railroad  v.  Hess,  34 
Okla.  615,  126  Pac.  760.) 

51  218.  "Where  an  employee  while  work- 
ing close  to  a  horse-power  corn  sheller 
slipped  from  a  wagon  and  upon  striking 
the  ground  threw  out  his  hand  to  steady 
himself  and  was  injured  by  the  hand  com- 
ing in  contact  with  certain  moving  cogs  in 
the  machine  negligently  left  unguarded; 
held,  that  the  unguarded  cogs  were  the 
proximate  cause  of  the  injury."  {Bales  v. 
McConnelh  27  Okla.  407,  112  Pac.  978.) 


PROXIMATE    CAUSE.  IOj 


sp:ction  3i). 

OREGOJi 

f  219.  "  'Proximate  cause'  is  probable 
cause.  It  does  not  mean  the  last  act  of 
cause  or  act  nearest  to  the  injury,  but  such 
act  wanting  in  ordinary  care  as  actually 
aided  in  producing  the  injury  as  a  direct 
and  existing  cause.  It  need  not  be  the  sole 
cause,  but  must  be  a  concurring  cause,  sucli 
as  might  reasonably  have  been  contem- 
plated as  involving  a  result  under  the  at- 
tending circumstances"  *  *  *  *_  {Brown 
V.  Railroad,  63  Oregon,  396, 128  Pac.  38.) 

%  220.  ' ' ' Proximate  cause'  is  any  act  or 
omission  that  immediately  produces  or  fails 
to  prevent  the  injury,  or  that  which  directly 
puts  into  operation  another  agency  or 
force,  or  interposes  an  obstacle  whereby 
injury  is  inflicted  that  would  not  have  hap- 
pened except  for  the  negligent  act  or  omis- 
sion." {Wells  v.  Railroad,  59  Oregon,  165, 
116  Pac.  1070.) 

^221.  "  'Proximate  cause'  is  defined 
generally  as  the  cause  which  leads  to  or 
may  naturally  be  expected  to  produce  the 


106  DOCTRINE    OF 

Sec.  39.  Oregon. 

result."     {Palmer  v.  Portland  Ry.  cGc,  56 
Oregon  262,  108  Pac.  211.) 

5[222.  '*  Although  one's  own  negligence 
has  brought  him  into  danger,  he  cannot  be 
willfully  or  wantonly  hurt  by  another  with 
impunity. ' ' 

*'  'The  last  clear  chance  doctrine' 
arises  where  plaintiff  has  been  negligent 
in  placing  himself  in  a  position  of  danger, 
but  that  negligence  has  spent  its  force  at 
the  time  he  received  an  injury  owing  to  the 
negligence  of  defendant."  {Scholl  v.  Bel- 
cher, 63  Oregon,  310,  127  Pac.  968.) 

^223.  "To  authorize  recovery  by  an 
employee  for  injury  because  of  the  em- 
ployer's negligent  failure  to  warn  him  of 
a  danger,  such  negligence  must  have  been 
the  proximate  cause  of  the  injury." 

"A  'proximate  cause'  is  a  cause  which 
leads  to,  or  might  naturally  be  expected  to 
produce,  the  result."  (Elliff  v.  Railroad, 
53  Oregon  66,  99  Pac.  76.) 

See  Buchanan  v.  L.  A.  H.  Co.,  66  Ore- 
gon, 503. 


PROXIMATE    CAUSE.  101 


SECTION  40. 

PENNSYLVANfA. 

Defined. 

51 224.  '*The  jnoxiinate  cause  of  an  acci- 
dent iiiiposinp:  liMl)ility  is  tlio  dominant  and 
onicient  causo  which  acts  directly  or  neces- 
sarily sets  in  motion  other  causes,  not 
created  l)y  an  indei)endent  agency,  and 
which  naturally  and  reasonably  results  in 
injury  as  a  consequence  of  the  primary  act, 
under  the  circumstances,  might  and  ought 
to  have  been  antici])ated  in  the  nature  of 
things  by  a  man  of  ordinary  intelligence 
and  prudence,  although,  in  advance,  it  might 
have  seemed  improbable  and  the  precise 
form  in  which  the  injuiy  actually  resulted 
could  not  have  been  foreseen.  The  suc- 
cession of  connected  events  springing  out 
of  the  primary  causal  act,  and  not  time  or 
distance  intervening  between  it  and  its  in- 
jurious consequences,  is,  except  as  bearing 
ui)on  the  question  of  improbability,  the 
test  in  the  application  of  the  rule."  {Wal- 
lace V.  Keystone  Auto  Co.,  239  Pa.  S.  110, 
86  Atl.  699.) 


108  DOCTRINE    OF 

Sec.  JfO.  Pennsylvania. 

5[225.  "Where  there  are  two  efficient, 
independent,  proximate  causes  of  an  injury 
sustained  on  a  highway,  the  primary  cause 
being  one  for  which  the  party  charged  with 
negligence  is  not  responsible,  and  the  other 
being  a  defect  in  the  highway,  the  injury 
must  be  referred  to  the  former  and  not  to 
the  latter."  {Thuhron  v.  Dravo  Co.,  238 
Pa.  S.  443,  86  Atl.  292.) 

51226.  A  case  in  which  it  was  held  that 
the  conduct  of  a  thirteen  year  old  boy  was 
the  proximate  cause  of  his  death,  and  not 
the  negligence  of  the  electrical  light  com- 
pany in  having  an  uninsulated  wire.  {Trout 
V.  Phila.  E.  Co.,  236  Pa.  S.  506,  84  Atl.  697.) 
{Mullen  V.  W.  B.  G.  cG  E.  Co.,  229  Pa.  St. 
54,  77  Atl.  1107.) 

51 227.  It  has  been  uniformly  held  in 
Pennsylvania,  and  it  is  unquestionably  the 
law,  where  a  horse  in  use  upon  a  highway 
is  frightened,  at  an  object  for  the  presence 
of  which  the  road  authorities  are  not  re- 
sponsible, and  frees  himself  wholly  or  in 
part  from  the  control  of  his  master  and 
injures  himself  or  master  or  both  against 
an  obstruction  or  defect  in  the  highway  no 


riU)XIMATR    CAUSE.  109 

Sec.  JfO.  Pennsylvania. 

recovery  can  be  had  against  the  road 
authorities,  for  the  reason  that  the  fright 
of  the  horse  is  the  proximate  cause  of  the 
injury,  and  the  master  having  lost  control 
of  the  horse  temi)orarily  is  not  in  position 
to  use  such  reasonable  care  and  prudence 
in  the  use  of  the  highway  as  the  law  re- 
quires of  him.  {Thuhron  v.  Dravo  Contr. 
Co.,  238  Pa.  St.  443,  86  Atl.  292,  44  L.  R.  A. 
(N.  S.)  699;  Jackson  Tp.  v.  Wagner,  127 
Pa.  St.  184,  17  Atl.  903.) 

5f228.  '^  Although  a  township  be  guilty 
of  negligence  in  not  repairing  a  defect  in 
a  highway,  yet  where  an  injury  results  from 
an  extraordinary  outside  cause  concurring 
with  the  defect  in  the  highway,  the  town- 
ship is  not  liable;  but  the  concurrence  of 
an  ordinary  outside  cause,  which  should 
have  been  foreseen  by  the  public  author- 
ities, will  not  relieve  the  township  from  re- 
sponsibility for  the  negligence."  {Scliaef- 
fer  V.  Jackson  Tp.,  150  Pa.  St.  145,  24  Atl. 
629;  Willis  v.  County,  183  Pa.  St.  184,  38 
Atl.  621 ;  Nicholas  v.  Pittsfield  Tp.  209  Pa. 
St.  240,  58  Atl.  283.) 


no  DOCTRINE    OF 


SECTION  41. 

RHODE  ISLAND. 

51 229.  "The  negligence  of  a  responsi- 
ble agent,  intervening  between  the  defend- 
ant's negligence  and  the  injury  suffered, 
breaks  the  casual  connection  between  the 
two." 

' '  If,  however,  the  intervening  act  or  neg- 
ligence is  a  natural  or  probable  result  of 
the  original  negligence,  the  latter  will  be 
regarded  as  the  proximate  cause  of  the 
injury. ' '  {Mahogany  v.  Ward,  16  R.  I.  479, 
17  Atl.  860.) 

51 230.  "A.  was  injured  by  a  horse 
driven  by  B.  The  horse  was  frightened 
by  the  overturn  of  a  sleigh  to  which  it  was 
harnessed,  and  the  overturn  was  caused  by 
a  heap  of  snow  and  ice  wrongfully  made 
and  left  in  the  highway  by  C. 

A.  sued  C.  to  recover  damages ;  Jield,  that 
the  wrongful  act  of  C.  was  in  law  the  prox- 
imate cause  of  A's  injury."  {Lee  v.  Rail- 
road, 12  R.  I.  383.) 


rilOXIMATE    CAUSE.  Ill 

Sec.  J/1.  Rhode  Island. 

51231.  "Where  a  traveler  on  a  highway 
is  injured,  and  the  injury  results  from  a 
combination  of  two  causes,  both  proximate, 
one  a  defect  in  the  highway  and  the  other 
a  natural  cause  or  a  i)ure  accident,  the 
town  is  lia])le  *  *  *  *^  provided  his  injuiy 
would  not  have  been  sustained  but  for  the 
defect  in  the  highway."  {Hampson  v.  Tay- 
lor, Etc.,  15  R.  I.  83,  23  Atl.  732.) 


112  DOCTRINE    OF 


SECTION  42. 

SOUTH  CAROLINA. 

5f  232.  ' '  Where  a  public  officer  pays  out 
public  funds  without  compliance  with  a 
mandatory  statute,  the  law  presumes  his 
act  is  the  direct  cause  of  the  loss  to  the 
county."  {County  of  R.  v.  Amer.  Siir.  Co., 
92,  S.  C.  329,  75  S.  E.  549.) 

^233.  "Where  a  servant  in  charge  of 
machinery,  informed  as  to  its  condition, 
undertakes  to  repair  the  machinery  while 
running  in  a  dangerous  way,  instead  of  in 
a  safe  way,  at  hand  and  apparent,  not  be- 
ing instructed  to  do  it  either  way,  and  his 
clothing  is  caught  by  a  set  screw  on  a  re- 
volving shaft,  not  negligently  set,  he  as- 
sumes the  risk  of  repairing  the  machinery 
in  the  dangerous  way  and  his  negligence  is 
the  proximate  cause  of  the  injury."  {Pol- 
lard V.  F.  I.  Oil  Co.,  86  S.  C.  69,  68  S.  E. 
132.) 

5[  234.  "  To  say  in  charge  if  '  defendant 's 
negligence  was  the  cause  of  his  death,  then 
the  plaintiff  would  be  entitled  to  recover,' 
is  not  harmful  where  in  another  part  of 


PROXIMATE    CAUSE.  113 

Sec.  Jf2.  South  CorolitM. 

tlie  charge  the  jury  were  instructed,  plain- 
tiff could  not  recover  unless  negligence  of 
defendant  was  the  proximate  cause  of  the 
death."  {Lamh  v.  Railroad,  86  S.  C.  lOG, 
67  S.  E.  958.) 

11235.  ''That  a  train  failed  to  stop  at 
a  stiition  to  wliich  a  passenger  had  i^aid 
his  fare  is  evidence  of  negligence,  and  the 
presunii)tion  tliat  injury  to  passenger  was 
due  to  carrier's  negligence  carries  issue  of 
proximate  cause  to  the  jury."  {Davis  v. 
Railroad,  83  S.  C.  66,  64  S.'e.  1015.) 

5(236.  ''Where  a  horse  driven  along  a 
highway  gets  his  foot  fastened  in  a  hole 
in  a  bridge,  from  which  he  cannot  extricate 
it,  and  in  which  position  he  was  hkely  to 
break  his  leg,  its  injury  being  the  direct 
and  proximate  result  of  negligence  on  part 
of  the  county,  and  its  owner  in  attempting 
to  heip  ihe  horse  is  injured  by  the  horse 
falling  on  him  and  breaking  his  leg,  the 
injury  to  the  man  is  the  proximate  result 
of  the  negligence  of  the  county."  {Cooper 
V.  R.  County,  16  S.  C.  202,  56  S.  E.  958, 
121  Amer.  State  946.) 

51 237.  ' '  Even  if  a  defendant  carrier  was 
negligent  in  not  keeping  a  propei*  lookout, 


114  DOCTRINE    OF 

Sec.  Ji2.  South  Carolina. 

the  recovery  should  not  be  had  for  injury 
to  one  lying  on  the  track  in  a  drunken,  help- 
less condition,  which  was  the  proximate 
cause  of  the  injury  as  this  constituted  con- 
tributory negligence."  {Craig  v.  A- A  Ry., 
93  S.  C.  49.) 

Leading  case:    Martin  v.  So.  Ry.,  77  S. 
C.  370,  58  S.  E.  3,  122  Amer.  State,^  574.) 


I'Uoxi.MA'n:  ("Acsi:.  ii." 


SECTION  4'A. 

SOUTH    DAKOTA. 

% 238.  * ' Pioxiiiiate  cause  of  an  injury  is 
the  immediate  cause,  it  is  the  natural  and 
continuing-  sequence,  unbroken  l»y  any  in- 
ten-ening  cause,  preceding  the  injury  and 
witliout  which  it  could  not  liave  happened." 

"J^roximate  cause  is  the  probable 
cause,"  ''Ivemote  cause  means  improbable 
cause."  {Joslin  v.  Linden,  26  S.  D.  420, 
425,  128  N.  W.  500.) 

^[239.  In  an  action  by  a  widow  to  re- 
cover damages  for  the  sale  of  intoxicating 
liquors  to  her  deceased  husband,  who  com- 
mitted suicide,  evidence  that  deceased  was 
intoxicated  the  greater  portion  of  the  time 
for  months  next  before  his  death,  and  that 
during  that  time  defendant  furnished  him 
with  more  or  less  of  the  liquors  producing 
his  intoxication,  is  sufficient  to  justify  the 
jury  in  finding  that  the  sale  of  intoxicating 
liquors  by  defendant  was  the  proximate 
cause  of  the  death.  {Garrigan  v.  Kennedy, 
19  S.  T).  11,  8  Ann.  Cas.  1125.) 

^  240.  • '  Proximate  and  remote  damages 
are  the   result  of  proximate   and   remote 


lie  DOCTRINE    OF 

Sec.  43.  South  Dakota. 

causes,  reasoning  in  an  inverse  order. 
Strictly  speaking,  tliere  is  no  remote  cause 
and  no  remote  damages;  the  proximate 
cause  is  that  which  produces  the  damage. 
The  remote  cause  is  used,  by  comi3arison, 
as  the  irresponsible  agent  which  seeks 
shelter  behind  the  responsible  one.  The 
proximate  cause  is  the  vis  major  which  in- 
tervenes and  usurps  the  place  of  the  pri- 
mary force,  or  unites  with  and  overcomes 
it,  so  as  to  become  the  principal  and  real 
cause  of  the  damage  sustained,  or  it  is  the 
primaiy  cause,  traced  back  through  inter- 
vening and  intermediate  causes,  by  natural 
and  continuous  succession,  from  the  injury 
resulting  to  the  wrong  committed.  The  in- 
termissions existing,  the  time  elapsing,  or 
minor  cause  intervening,  do  not  affect  the 
conclusion,  so  that  the  original  cause  be 
continuously  operative  as  the  principal 
factor  in  producing  the  final  result." 
{Pielke  v.  Railroad,  5  Dakota  (1889)  4-W, 
41  N.  W.  669.) 

Leading  case:    Loiseau  v.  Arp,  21  S.  D. 
566,  114  N.  W.  701,  130  Amer.  State,  741.) 


I'ROXIMATE    CAUSE.  117 

SECTION  44. 

tennessee. 

Defined. 

5f241.  "TJie  jiroximate  cause  of  an  in- 
jur v  may,  in  general,  be  stated  to  be  that 
act  or  omission  which  immediately  causes 
or  fails  to  prevent  tlie  injury;  an  act  or 
omission  occurring  or  concurring  with 
another,  which,  had  it  not  hapi)ened,  the 
injury  would  not  liave  been  inflicted,  not- 
withstanding the  latter." 

''Illustrating  by  the  facts:  It  is  true 
that  the  fire  destroyed  the  cotton,  and  in 
that  sense  caused  the  loss,  but  it  api>ears 
that,  notwithstanding  the  occurrence  of  the 
fire,  the  cotton  would  not  have  been  burned 
by  it  had  not  the  breaking  of  the  train  while 
it  was  being  removed  happened,  so  that, 
but  for  this  fact,  the  cotton  would  have  been 
saved.  This  (the  breaking  of  the  train) 
must  therefore  be  held  to  be  the  proximate 
cause  of  the  loss,  and  if  it  was  the  result  of 
negligence,  the  carrier  must  answer  for  it." 
{Deming  v.  M.  C.  Co.,  90  Tenn.  310,  353, 
17  S.  W.  99, 13  L.  K.  A.  518.) 

The  above  definition  has  been  repeatedly 


lis  DOCTRINE    OF 

^^c.  Jf^.  Tennessee. 

approved  in  Tennessee  {Mayor  of  City  of 
Tennessee  v.  F.  Co.,  I'll  Tenn.  107,  114.) 

5[242.  In  an  action  brought  to  recover 
damages  for  wrongfully  suing  out  an  in- 
junction— not  on  the  bond,  but  against  the 
complainants,  in  the  injunction  suit,  person- 
ally, it  was  held  that  the  suing  out  of  the 
injunction  was  not  the  proximate  cause  of 
the  injury.  {Haiukins  v.  Huhhell,  127  Tenn. 
315,  154  S.  W.  1146.) 

^243.  This  court  is  inclined  to  the 
theory  that  after  all  ''to  a  sound  judgment 
must  be  left  each  particular  case. ' '  that  is, 
that  there  can  be  no  inflexible  rule'  for  the 
application  of  the  doctrine  of  proximate 
cause.  {Chattanooga  L.  d-  P.  Co.  v.  Hodges, 
109  Tenn.  331,  70  S.  "W.  616,  citing  1  Strob., 
547,  47  Amer.  Dec.  578,  7  Wall.  49.) 

Leading  case:  Railroad  v.  Kelly,  91 
Tenn.  699,  20  S.  W.  312,  17  L.  E.  A.  691, 
30  Amer.  State,  902. 


I'lJoXIMATK    CAUSE.  119 


SECTION  45. 

TEXAS. 

f  244.  Wliere,  by  the  neglect  oi*  (lci\-ii»l- 
ant's  conductor  to  give  a  jjassenger  a  check 
showing  lier  right  to  pass  over  a  connecting 
line,  she  was  compelled  to  borrow  money 
from  a  fellow  passenger  to  pay  her  fare, 
in  the  absence  of  evidence  that  the  con- 
ductor had  reason  to  contemplate  such  re- 
sult as  a  probable  conse([uence  of  his  de- 
fault, damages  due  to  her  humiliation  in 
having  to  so  borrow  money  were,  as  a  mat- 
ter of  law,  not  recoverable;  the  question  of 
proximate  result  could  not  be  left  to  the 
jury.  {Railroad  v.  Welch,  100  Tex.  118, 
94  S.  W.  333.) 

Defined. 

^245.  "Negligence,  or  an  act  not 
amounting  to  wanton  wrong,  is  the  proxi- 
mate cause  of  an  injury  which,  in  the  light 
of  attending  circumstances,  ought  to  have 
been  foreseen  as  a  natural  and  probable 
consequence  of  the  negligence  or  wrongful 
act." 

''The   intervention    of    an   independent 


120  DOCTRINE    OF 

^cc.  45.  Texas. 

agency,  bringing  about  tlie  result,  does  not 
necessarily  render  the  original  cause  re- 
mote, but  bears  more  directly,  on  the  ques- 
tion whether  the  injury  ought,  under  all 
the  circumstances,  to  have  been  foreseen, 
and,  where  this  latter  fact  appears,  the 
original  negligent  act  ought  to  be  deemed 
actionable. ' ' 

The  Test. 

The  test  is  whether  a  reasonably  pru- 
dent man,  in  view  of  all  the  facts,  would 
have  anticipated  the  result,  not  necessarily 
the  precise  actual  injury,  but  some  like  in- 
jury, produced  by  similar  intervening 
agencies."  (Railroad  v.  Bigham,  90  Tex. 
223,  38  S.  W.  162.) 

%  246.  ' '  If,  subsequent  to  the  original 
wrongful  or  negligent  act,  a  new  cause  has 
intervened,  of  itself  sufficient  to  stand  as 
the  cause  of  the  misfortune,  the  former 
must  be  considered  as  too  remote.  The 
original  wrongful  or  negligent  act  will  not 
be  regarded  as  the  proximate  cause,  where 
any  new  agency,  not  within  the  reasonable 
contemplation  of  the  original  wrongdoer 


PROXIMATE    CAUSE.  121 

Sec.  Ji5.  Texas 

has  intervened  to  brin<^  about  the  injury." 
{Scale  V.  Railroad,  05  Tex.  274.) 

^1247.  "A  defendant  is  liable  for  in- 
juries to  another  when  its  negligence  is 
merely  a  concurring  and  not  the  sole  cause 
of  the  injuries."  {Railroad,  Etc.  Co.  v. 
Street,  57  Tex.  C.  P.  194.) 

51 248.  Damages  which  could  not  be  rea- 
sonably anticii)ated  as  the  probable  result 
of  an  act  or  omission,  cannot  be  held  to 
have  been  i)roximately  caused  by  such  act 
or  omission."  {Railroad  v.  Reed,  50  Tex. 
C.  P.  453.) 

^[249.  "if  an  accident  occurs  from  two 
causes  both  due  to  negligence  of  different 
persons,  but  together  the  efficient  cause, 
then  all  the  persons  whose  acts  contribute 
to  the  accident  are  liable  for  an  injury 
resulting,  and  the  negligence  of  one  fur- 
nishes no  excuse  for  the  negligence  of  the 
other."  {Railroad  v.  Edwards,  55  Tex.  C. 
P.  543.) 

^  250.  ' '  AVhere  one  was  killed  by  a  train 
while  walking  too  close  to  a  railway  track, 
if  he  was  negligent  in  choosing  such  place 
to  walk  instead  of  another  which  was  safe 


122  DOCTRINE    OF 

Sec.  45.  Texas 

there  could  be  no  issue  as  to  such  negli- 
gence being  the  proximate  cause  of  his  in- 
jury nor  necessity  to  qualify,  by  submitting 
the  question  whether  it  was  so."  *  *  *  * 
{Railroad  v.  Wall,  102  Tex.  362,  116  S. 
W.  1140.) 

^251.  Proximate  cause  of  an  injury  is 
a  mixed  question  of  law  and  fact  which 
should  be  submitted  to  the  jury,  and  not 
one  of  law  only,  such  as  the  Supreme  Court 
could  determine.  {Railroad  v.  Johnson, 
101  Tex.  422,  108  S.  W.  964.) 


PROXIMATE    CAUSE.  123 


SECTION  4(J. 

UTAH. 

^[252.  ''Where  plaintiff  who  was  deliv- 
ering a  parcel  to  an  occupant  of  dcfeiKl- 
ant's  apartment  building  became  fright- 
ened at  a  horse  standing  in  the  rear  of  the 
building,  and  in  endeavoring  to  avoid  the 
horse  was  injured  by  falling  into  an  open 
cellarway,  defendant  was  not  liable,  as  the 
unguarded  cellarway  was  not  the  proxi- 
mate cause."  {Anderson  v.  Bransford,  39 
Utah  256,  116  Pac.  1023.) 

f  253.  ' '  Where  an  act  is  such  that  a  per- 
son in  the  exercise  of  ordinary  care  could 
have  anticipated  as  likely  to  result  in  in- 
jury, then  he  is  liable  for  an  injury  actually 
resulting  from  it,  although  he  could  not 
have  anticipated  the  particular  injury 
which  did  occur."  {Stone  v.  Railroad,  32 
Utah,  185,  89  Pac.  715.) 

51 254.  ' '  Where  the  plaintiff  in  a  suit  to 
recover  damages  for  injuries  shows  by  his 
own  evidence  that  he  was  guilty  of  contri- 
butory negligence  which  was  the  proximate 
cause  of  such  injuries,  the  defense  is  re- 


124  DOCTRINE    OF 

Sec.  J,6.  Utah. 

lieved  from  the  burden  of  proving  such  neg- 
ligence, and  the  plaintiff  cannot  recover." 
[Silcoch  V.  Bnilroad,  22  Utah,  179.) 

^255.  ''Where  the  injured  party  was 
negligent  in  the  first  instance,  such  negli- 
gence will  not  defeat  his  action,  if  it  be 
shown  that  the  defendant  might  have 
avoided  the  injuiy  by  the  exercise  of  ordi- 
nary care  and  reasonable  prudence.  As  to 
whose  negligence  was  the  proximate  cause 
of  the  accident  is  a  question  of  fact  for  the 
jury."     {Hall  v.  Railroad,  13  Utah,  243.) 

Leading  case:  Soule  v.  Weatherhy,  39 
Utah,  580,  118  Pac.  833,  30  Ann.  Cas.  75, 


PROXIMATE  CAUSE.  r27, 


SECTION  47. 

\  IJRMONT. 

%  256.  ' '  TJie  voluntary  intoxication  of  a 
))iM-s()u  does  not  relieve  liiui  I'roin  exorcis- 
ing the  care  I'eciiiircd  ol'  a  soher  man  in  the 
same  circumstances,  and  so,  if  failure  to 
exercise  tiiat  care  contributes  to  the  in- 
jury, he  is  guilty  of  contributory  negligence 
and  cannot  recover  for  the  concurrent  neg- 
ligence of  another."  (Burleson  v.  M.  L. 
ii:  P.  Co.,  86  Vt.  492,  86  Atl.  745.) 

f  257.  "Due  caution  means  caution  com- 
mensurate with  existing  liazard."  {l^an 
Dijke  V.  Rij.  Co.,  84  Vt.  ivi,  78  Atl.  958.) 

^[258.  *'One  negligently  starting  a  fire 
held  liable  for  the  consequent  damages, 
though  caused  by  the  change  in  the  direc- 
tion of  the  wind."  {Ide  v.  Railroad,  83 
Vt.  66,  74  Atl.  401.) 

5[259.  Failure  of  railroad  telegraph 
operator  to  transmit  report  of  departure  of 
extra  train  to  dispatcher  held  proximate 
cause  of  a  collision  between  the  extra  and 
a  regular  train."  {Mahoney  v.  Railroad, 
78  Vt.  244,  62  Atl.  722.) 


126  DOCTRINE    OF 

Sec.  47.  Vermont. 

5[  2G0.  ' '  Negligence  is  a  shortage  of 
legal  duty  that  causes  injury."  {Corhin  v. 
Railroad,  78  Vt.  458,  63  Atl.  138.) 

^261.  Defendant's  duty  to  keep  bridge 
in  repair,  plaintiff,  traveler  upon  the  bridge 
at  the  time  of  accident,  in  the  exercise  of 
due  care,  and  the  insufficiency  of  the  bridge 
must  have  been  the  proximate  cause  of  the 
injury."  {Mohus  v.  Waitsfield,  75  Vt.  122, 
53  Atl.  775.) 

%  262.  ' '  The  report  distinctly  shows  that 
the  injury  is  to  be  attributed  to  two  proxi- 
mate and  concurring  causes — the  one  being 
the  insufficiency  or  defect  in  the  highway, 
and  the  other  the  darkness  of  the  night." 

''It  has  been  settled  in  this  State  that 
where  the  injuries  sustained  were  caused 
in  part  by  a  defect  in  a  highway  and  in  part 
by  a  pure  accident,  or  such  an  accident  as 
could  not  have  been  prevented  by  ordinary 
care  and  prudence,  the  town  will  be  liable." 
{Swift  V.  Neivherrij,  36  Vt.  355  357.) 


PROXIMATE    CAUSE.  127 


SECTION  48. 

\  Ih'fllS'lA. 

f  263.  ''The  plaiiilill'  is  entitled  to  re- 
cover all  siK'h  damages  as  are  the  natural 
and  proximate  results  of  the  wrongful  act 
com])lai]ied  of  *  *  *  *  *  The  rule  is  well 
established  and  uniroi-iiily  enuneiated  by 
the  courts,  but  there  is  often  difficulty  in 
api)lying  it  to  a  particular  case.  The  i)laiu- 
ti ff  must  show  not  only  that  he  has  sus- 
tained damages,  but  also  show  with  reason- 
able certainty  the  extent  of  it,  and  it  nmst 
ai)pear  that  such  damage  was  the  natural 
and  proximate  result  of  the  injuiy. ' '  {IJiir- 
rus  V.  Ilines,  94  Va.  413,  416,  26  S.  E.  875.) 

^264.  ''The  law  always  refers  an  in- 
jury to  the  proximate,  not  to  the  remote 
cause.  To  warrant  the  finding  that  an  act 
of  mere  negligence  is  the  proximate  cause 
of  an  injury,  it  must  appear  that  the  in- 
jury was  the  natural  and  probable  conse- 
quence of  the  negligence,  and  that  it  ought 
to  have  been  f  orseen  in  the  light  of  attend- 
ing circumstances."  {Win free  v.  Jones, 
104  Va.  39,  51  S.  E.  153,  1  L.  E.  A.  (N. 
S.)  201.) 


128  DOCTRINE    OF 

^ec.  ^S.  Virgima. 

<fy265.  ^'A  defendant  in  an  action  to  re- 
cover damages  for  a  personal  injury  can- 
not be  held  liable  therefor  unless  his  neglect 
of  some  duty  he  owed  to  the  party  injured 
was  the  proximate  cause  of  the  injury ;  and 
the  requisites  of  proximate  cause  are,  first, 
the  doing  or  omitting  to  do  an  act  which  a 
person  of  ordinary  prudence  could  foresee 
might  naturally  or  probably  produce  the  in- 
jury, and,  second,  that  such  act  or  omission 
did  produce  it."  {Virginia  I.  C.  &  C.  Co. 
V.  Riser,  105  Va.  695,  54  S.  E.  892.) 

51266.  ''The  requisites  of  proximate 
cause  are  the  doing  or  omitting  to  do  an 
act  which  a  person  of  ordinary  prudence 
could  foresee  might  naturally  or  jDrobably 
produce  the  injury,  and  the  infliction  of  the 
injury  by  such  act  or  omission."  {Wilson 
V.  Railroad,  108  Va.  822,  62  S.  E.  972.) 

%  267.  ' '  In  order  to  warrant  a  finding 
that  negligence  or  an  act,  not  amounting  to 
a  wanton  wrong,  is  the  proximate  cause  of 
an  injury,  it  must  appear  that  the  injury 
was  the  natural  and  probable  consequence 
of  the  negligence  or  wrongful  act,  and  that 
it  ought  to  have  been  foreseen  in  the  liaiit 


PROXIMATE    CAUSE.  lliO 

Sec.  J/H.  Virginia. 

of  attending  circumstances.  If  the  wrong 
and  rosulting  djiinjiges  are  not  known  l)y 
conmion  experience  to  he  naturally  and 
usually  in  sequence,  and  tlie  damage  does 
not,  according  to  the  ordinary  course  of 
events,  follow  tlie  wrong,  tlien  the  wrong 
is  not  the  proximate  cause  of  the  resulting 
damages. ' ' 

"Whether  or  jiot  a  negligent  act  is  the 
proximate  cause  of  resulting  damage  is  a 
mattei-  of  law  for  the  court  when  the  (pies- 
tion  is  not  involved  in  <h)uht,  and  there  is 
no  conflict  in  the  evidence."  (Allisou  v. 
Cifij  *  *  *,  112  Va.  2411  71  S.  E.  525.) 

Contributory  Negligence. 

f  268.  *  *  *  ^'Plaintilf  is  not  entitled 
to  recover  if  his  own  want  of  care  was 
eitlier  wholly  or  })artially  the  efficient  cause 
of  the  injury,  or  if  the  injury  was  due  to 
the  mutual  and  concurring  negligence  of  the 
plaintiff  and  defendant.  It  is  not  necessary 
for  the  defendant  to  show  that  the  plain- 
tiff's negligence  was  the  proximate  cause 
of  his  injury.  It  is  enough  if  the  defend- 
ant shows  that  the  plaintiff's  act  was  a 
contributing  or  concurring  negligent  cause 


130  DOCTRINE    OF 

Sec.  JjfS.  Virginia. 

of  liis  injury."     {Clinch  Coal  Co.  v.  Os- 
borne, 114  Va.  13,  75  S.  E.  750.) 

51 269.  ' '  If,  owing  to  a  negligent  failure 
properly  to  maintain  gas  mains,  illuminat- 
ing gas  escapes  into  an  abandoned  sewer, 
and  thence,  through  a  private  connecting 
pipe  ,into  a  private  building,  killing  the  oc- 
cui>ant,  the  negligence  in  permitting  the  gas 
to  escape  is  the  proximate  cause  of  the 
death,  unless  there  was  some  other  super- 
vening or  responsible  cause  intervening  be- 
tween such  negligence  and  the  resulting 
death.  To  be  a  supervening  cause  *  *  * 
it  must  so  entirely  supersede  the  defend- 
ant's negligence  that  it  alone,  without  the 
defendant's  negligence  contributing  there- 
to in  the  slightest  degree,  produces  the  in- 
jury. ' '  (City  of  Richmond  v.  Gay's  Admr., 
103  Va.  320,  49  S.  E.  482.) 

Other  leading  cases :  Standard  Oil  Co. 
v.  Wakefield,  102  Va.  824,  47  S.  E.  830; 
Fowlkes  V.  Railroad,  96  Va.  742,  32  S.  E. 
464;  Lane  Bros.  Co.  v.  Barnard,  111  Va. 
680,  69  S.  E.  969;  C.  cC-  0.  R.  Co.  v.  Wills, 
111  Va.  32,  68  S.  E.  395;  So.  R.  Co.  v. 
Bailey,  110  Va.  833,  67  S.  E.  365;  Jacohy 


PROXIMATK    CAUSE.  VM 

See.  JiH.  Virginia. 

Co.  V.  Williams,  110  Va.  55,  G5  S.  E.  4i)l ; 
B.  of  T.  Co.  V.  Cralle,  109  Va.  246,  63  S.  E. 
995,  1.T2  Amer.  Stat<'.  917;  ('.  d-  O.  U.  Co.  v. 
Bell,  Admr.  of  Paris,  ill  \'a.  41,  68  S.  E. 
398,  27L.  K.  A.  (N.  S.)  773.) 


132  DOCTRINE    OF 


SECTION  49. 


WASHINGTON. 

5[270.  ''Where  the  immediate  cause  of 
death  was  pleurisy  with  effusion,  following 
an  accident,  the  proximate  cause  of  the 
death  was  the  cause  that  produced  the 
pleurisy  with  effusion."  {Thompson  v. 
Railroad,  71  Wash.  436, 128  Pac.  1070.) 

^271.  Negligence  of  defendant's  fore- 
man in  dropping  a  brick,  proximate  cause 
of  death  of  plaintitf 's  decedent.  {Kolojf  v. 
Railroad,  71  Wash.  543,  129  Pac.  398.) 

^  272.  ' '  Failure  to  look  back  after  leav- 
ing the  curb,  even  if  contributoiy  negli- 
gence, does  not  preclude  a  recovery  where 
the  defendant,  driving  an  automobile,  could 
have  seen  the  plaintiff  and  avoided  the  ac- 
cident if  he  had  been  running  at  a  reason- 
able rate  of  sj^eed  or  sounded  a  horn." 
{Hillehrant  v.  Manz,  71  Wash.  250,  128 
Pac.  892.) 

51 273.  Building  permit- — owner  of  prop- 
erty— independent  contractor — no  staging 
over  sidewalk  as  required  by  City  ordi- 
nance one  lawfully  on  sidewalk,  injured  by 


PROXIMATE    CAUSK.  133 

Krc.  Jf9.  Washitt/jton. 

railing-  lirick  I'ailiiic  to  construct  staging 
l)roxiuiate  cause  of  injury.  (Frost man  v. 
Stirraff,  Etc.,  05  Wasli.  G(J8,  118  l»ac.  742.) 

^[274.  P>lack  {lani|»  in  coal  mine  })roxi- 
nuite  cause;  ol'  an  injury  i'roni  falling  rock, 
where  jjIaintifT's  lights  were  \n\t  out  by  tlie 
black  dani}).  {Naleivaja  v.  N.  I.  Co.,  (J3 
Wash.  391,  115  Pac  847.) 

^  275.  ' '  Contributory  negligence  by  third 
person  is  not  a  defense  to  an  action  for 
negligentl}^  causing  an  injur}-  to  the  i)lain- 
tilf."  {TJioresen  v.  Lumber  Co.,  73  Wash. 
99,  132  Pac.  800.) 

%  276.  Accident  on  an  elevator  being  op- 
erated by  an  inexperienced  person — i)roxi- 
mate  cause  negligence  of  the  owner.  {Atke- 
son  V.  Jackson,  72  Wash.  233, 130  Pac.  102.) 

%  277.  Escaping  electric  current  due  to 
broken  wire — negligence  of  company — 
proximate  cause  of  injury.  (Metz  v.  Pos- 
tal Tel  Co.,  Etc.,  72  Wash.  188,  130  Pac. 
343.) 

^278.  Starting  of  locomotive  without 
warning,  held  to  be  the  proximate  cause 
of  injury   to   employee   of   the   company. 


134  DOCTRINE    OF 

Sec.  49-  Washington. 

{Alberg  v.  Campbell  L.  Co.,  66  Wash.  84, 
119  Pac.  6.) 

^  279.  Damage  by  fire  as  result  of  carry- 
ing out  an  ordinance  requiring  building  to 
be  fumigated.  Proximate  cause  held  to  be 
the  ordinance  and  not  the  negligence  of  the 
officers.  Assurance  company  not  liable  un- 
der its  policy.  {Hocking  v.  Assurance  Co., 
62  Wash.  73,  113  Pac.  259,  36  L.  R.  A. 
(N.  S.)  1155.) 

%  280.  Wliere  an  extraordinary  flood  in 
a  river  is  turned  aside  by  a  boom  and  by 
reason  thereof  washes  away  the  opposite 
bank,  the  owner  of  the  boom  is  liable.  The 
same  cannot  be  excused  under  the  plea  that 
such  flood  is  an  act  of  God.  {Kulinis  v. 
Lewis  River  B.  &  L.  Co.,  51  Wash.  196,  98 
Pac.  655.) 

Leading  case:  Wodnick  v.  Luna  Park, 
69  Wash.  638,  125  Pac.  941,  42  L.  R.  A. 

(N.  S.)  638.) 


PROXIMATE    CAUSE.  135 

SECTION  50. 

WEST  VIIiOINIA. 

f  281.  ''A  violation  of  a  statute  inhibit- 
ing the  omjjloymcnt  ol"  i)oys  under  fourteen 
years  of  age  in  coal  mines  constitutes  ac- 
tioiialilc  negligence  wliciicxcr  that  violation 
is  the  natural  and  pioxiinate  cause  of  an 
injury."  (Xorniau  v.  V.-P.  Coal  Co.,  68 
W.  Va.  405,  69  S.  E.  857,  31  L.  R.  A.  (N.  S.) 
504.) 

51 282.  * '  In  an  action  for  damages  in  such 
case  the  jury  have  a  right  to  regard  the 
intoxication  of  the  hushand  as  the  proxi- 
mate cause  of  liis  })hysical  injury,  and  the 
injury  to  the  wife's  meails  of  sui)port  as 
a  natural  sequence  resulting  from  the  un- 
lawful sale  of  intoxicating  liciuor." 

''The  common  law  rule  of  proximate 
cause  which  obtains  in  other  actions  of 
tort  does  not  apply  to  actions  under  sec- 
tion 26,  chapter  32,  Code  1906  *  *  *. 
[Duchivorth  v.  Stalnaker,  68  W.  Va.  197, 
69  S.  E.  850.) 

CONTRIBUTOKY    NEGLIGENCE. 

51283.  ''Negligence  of  a  railroad  com- 
pany in  failing  to  stop  its  train  long  enough 


136  DOCTRINE    OF 

Sec.  50.  West  Virginia. 

at  a  station  to  permit  passengers  to  alight 
will  not  absolve  a  passenger  from  negli- 
gence in  attempting  to  alight  from  the  train 
after  it  has  again  been  put  in  motion. ' ' 

''One  is  not  bound  to  assume  the  risk  of 
a  known  danger  because  he  is  directed  to 
do  so  by  another;  he  must  think  and  act 
for  himself,  and  if  he  relies  upon  another's 
judgment  and  does  an  act,  contrary  to  his 
own  sense  of  prudence,  he  is  negligent." 

5[284.  ''In  the  present  case  the  proxi- 
mate cause  of  the  injury  was  the  alighting 
from  the  moving  train,  and  not  the  failure 
to  stop  the  train  *  *  *  at  the  station." 
{Farley  v.  Railroad,  67  W.  Va.  350,  67  S.  E. 
1116;  27  L.  R.  A.  (N.  S.)  1111.) 

5[  285.  *  *  *  < '  Not  only  the  incompe- 
tency of  the  mine  boss  must  be  proved,  but 
such  incompetency  must  be  shown  to  be 
the  proximate  cause  of  the  injury  or  to 
have  di  recti  y  contributed  thereto. ' '  ( Fuller 
V.  Margaret  M.  Co.,  64  W.  Va.  437,  63  S.  E. 
206.) 

5f  286.  ' '  Where  in  an  action  *  *  *  for 
negligently  allowing  fire  to  escape  from 
premises  of  the  defendant,  the  defense  is 


i'ltoXIMATl-:    CAUSK.  137 

Hcc.  50.  Wi  st  Virginin. 

that  the  loss  was  oecasiuued  by  a  ^inldfii 
shift  of  the  wind,  it  must  be  shown 
that  the  change  of  the  wind  was  unusual 
and  oxti-aoi'dinaiy,  and  sufh  as  in  its  na- 
ture not  roasonal)le  to  ho  oxj)0(.'tod."  {Ma- 
haff'cij  V.  Lumber  Co.,  (il  \V.  Va.  571,  56 
S.  k/8<J3.) 

Otlicr  leading  cases:  (ieritif's  Admr.  v. 
Haley,  29  W.  Va.  98, 11  S.  E.  901) ;  {Butch- 
er V.  Railroad,  37  W.  Va.  180,  IG  S.  E.  457, 
18  L.  R.  A.  519) ;  Washington  v.  Railroad, 
17  W.  Va.  190;  Trustees  B.  I.  v.  Siers,  68 
W.  Va.  125,  69  S.  E.  468,  22  Ann.  Cas.  920. 


138  DOCTRINE    OF 

SECTION  51. 

WISCONSIN. 

^287.  "Where  the  master  negligently 
retains  in  his  employ  an  incompetent  ser- 
vant whose  incompetency  causes  an  injury, 
the  master's  negligence  is,  as  a  matter  of 
law,  the  proximate  cause  of  the  injury." 
(Serdan  v.  Falk  Co.,  153  Wis.  169,  140  N. 
W.  1035.) 

^288.  "In  a  personal  injury  action  the 
burden  is  upon  the  plaintiff  to  show  to  a 
reasonable  certainly  that  defendant  was 
negligent  and  that  such  negligence  was  the 
proximate  cause  of  the  injury." 

It  is  not  sufficient  to  show  two  or  more 
possible  causes,  and  from  such  evidence 
permit  the  jurj^  to  speculate  as  to  which 
one  caused  the  injury.  (Kasz  v.  Johnson 
Service  Co.,  151  AVis.  149, 138  N.  W.  54.) 

5[  289.  ' '  If  the  fact  of  reasonable  antici- 
pation of  injury,  as  an  element  of  proxi- 
mate cause,  is  established  as  a  matter  of 
law,  error  in  submitting  the  question  to  the 
jury  is  harmless  if  the  jurj^  answer  it  cor- 
rectly." {B rosso rd  v.  Morgan  Co.,  150 
Wis.  1,  136  N.  W.  181.) 


rUoXI.MATE    CAU.SE.  139 

Sec.  51.  Wisfonxin. 

Instruction. 

^1290.  ''All  instruction,  in  such  case, 
thai  negligence  is  tlie  proximate  cause  of 
an  injury  only  when  that  injury  is  the 
natural  and  ])rol)ahlo  result  of  such  negli- 
gence and  when  in  the  light  of  attending 
circumstances  the  injury  ought  to  have  been 
foreseen  by  a  ])erson  of  ordinary  care  and 
prudence,  is  approved."  {Lemke  v.  Mil- 
icaukee,  Etc.,  Co.,  149  Wis.  535,  136  N.  W. 
286.) 

51 291.  "To  supply  the  element  of  rea- 
sonable anticipation  essential  to  warrant 
a  finding  that  a  negligent  act  was  the  prox- 
imate cause  of  an  injury,  it  is  not  neces- 
sary that  an  ordinarily  prudent  man  ought 
reasonably  to  have  anticipated  the  particu- 
lar injury  to  the  plaintift"  or  to  any  par- 
ticular person,  but  it  is  sufficient  that  such 
a  man  ought  reasonably  to  have  anticipated 
that  his  conduct  might  probably  cause  some 
injury  to  another."  {Coel  v.  G.  B.  Trac. 
Co.,  147  Wis.  229,  133  N.  W.  23.) 

51 292.  Plaintiff 's  decedent  was  employed 
to  operate  edger  saws.  Johnson,  an  incom- 
petent boy  under  sixteen  years  of  age,  was 


140  DOCTRINE    OF 

Sec.  51.  Wisconsin. 

employed  to  remove  material  from  the  saws. 
The  local  statute  forbade  the  einployinent 
of  minors  under  sixteen  years  old  for  such 
work,  A  board  flew  back  over  the  saws 
and  killed  the  edgerman.  The  jury,  by  spe- 
cial verdict,  found  Johnson  incompetent, 
which  incompetency  was  the  proximate 
cause  of  the  injury,  and  that  defendant  had 
knoweldge  of  that  incompetency  at  the  time 
of  the  injury.    Plaintiff  recovered. 

The  question  not  decided  is  this :  Would 
the  mere  fact  that  Johnson  was  under  six- 
teen, and  his  employment  unlawful,  entitle 
the  plaintiff  to  recover,  where  the  death 
was  caused  by  negligence  of  the  boy? 
{0' Sullivan  v.  Lumber  Co.,  154  "Wis.  467.) 

Leading  cases:  Eicliman  v.  Buchheit, 
128  Wis.  385,  8  Ann.  Cas.  435 ;  Feldschnei- 
der  V.  Railroad,  122  AVis.  423,  99  N.  W. 
1034;  Deisenrieter  v.  K.  M.  M.  Co.,  97  Wis. 
279,  72  N.  W.  735;  Foster  v.  Malherg,  119 
Wis.  168, 137  N.  W.  816,  41  L.  R.  A.  (N.  S.) 
967.) 


PROXIMATE    CAUSE.  141 


SECTION  52. 

WYOMING. 

5[  293.  Contributory  negligence  is  an  af- 
firmative defense,  and  must  be  pleaded,  but 
the  defendant  may  take  advantage  of 
everything  in  the  plaintiff's  evidence  which 
tends  to  defeat  his  right  to  recover. 

"The  question  of  negligence  is  a  mixed 
one  of  law  and  fact,  and  where  the  facts 
are  not  disputed  the  question  of  submitting 
it  to  the  jury  is  one  of  law  to  be  deter- 
mined by  the  court.  In  such  case,  if  the 
evidence  tends  to  prove  negligence  on  part 
of  defendant  as  the  proximate  cause  of  the 
injury,  the  question  should  be  submitted 
to  the  jury,  unless  upon  the  whole  evidence 
it  is  apparent  that  the  act  complained  of 
was  the  result  of  the  joint  negligence  of 
plaintiff  and  defendant,  or  that  the  injury 
and  damage  would  not  have  occurred  ex- 
cept for  the  negligence  or  want  of  reason- 
able care  on  the  part  of  the  plaintiff;  this 
rule  not  applying  where  the  injury  is  the 
result  of  a  wanton  or  intentional  act  on 
the  part  of  the  defendant."  {Railroad  v. 
Cook,  18  Wyo.  43,  102  Pac.  657.) 


142  DOCTRINE    OF 

SECTION  53. 

ACT  OF  GOD. 

^294.  This  expression,  ''act  of  God," 
has  long  been  used  in  law  to  describe  causes 
or  causations  which  are  above  and  beyond 
human  origin  and  control.  For  the  same 
purpose  the  civil  law  employs  the  term  "vis 
major/'  meaning,  a  greater  force  or  power. 
Some  such  causes  may  be  enumerated  as 
follows:  Rain,  snow,  hail,  sleet,  wind, 
lightning,  earth-quakes,  drouth,  storms, 
tempests,  perils  of  the  sea,  illness,  death, 
floods,  dangers  of  the  rivers,  natural  light, 
darkness  and  fog,  volcanic  eruption,  natu- 
ral freezing  and  thawing,  tides  of  the  sea, 
and  all  such  manifestations  of  nature,  due 
entirely  to  natural  causes,  without  human 
intervention  to  cause,  and  such  as  human 
skill  and  ability  could  not  reasonably  have 
foreseen  and  prevented.  {Story  on  Bail- 
ments, Sees.  25,  211;  Gleason  v.  Va.  M.  R. 
Co.,  140  U.  S.  345;  Saunders  v.  Coleman,  \)7 
Va.  694,  34  S.  E.  621,  47  L.  R.  A.  581.) 

51  295.  AVliere  such  demonstrations  of 
nature  occur  to  the  injury  of  persons  and 


I'UOXIMATi:    CAUSE.  143 

Sec.  53.  Act  of  God. 

property  entirely  independent  of  human 
intervention  as  a  cause,  and  such  as  human 
skill  and  ability  could  not  reasonably  have 
foreseen  and  i)revented,  it  is  in  law  an  in- 
jury by  the  act  of  (iod,  for  which  there  is 
no  redress. 

51296.  Where  the  law  imposes  a  duty 
and  the  party  is  disabled  from  performing 
it  by  act  of  God,  without  any  default  of 
his  own,  the  law  excuses  him,  but  where 
one  by  his  own  contract  creates  a  duty 
which  he  agrees  to  perform  he  will  not, 
generally,  be  excused  from  making  it  good, 
notwithstanding  any  act  of  God.  To  this 
general  rule  exceptions  have  been  made,  in 
case  of  bail  bonds,  contracts  for  strictly 
personal  services,  marriage  and  the  like, 
where  death  ends  all.     (Ante  Sec.  51.) 

%  297.  Where  the  collision  between  two 
street  cars,  in  which  the  injury  occurred, 
was  an  accident  due  directly  and  exclusive- 
ly to  natural  causes,  without  human  inter- 
vention, which  by  no  human  foresight, 
pains  or  care  reasonably  to  have  been  ex- 
pected   could    have    been   prevented,    the 


144  DOCTRINE    OF 

Sec.  53.  Act  of  God. 

street  car  company  was  not  liable.  It  was 
an  act  of  God.  {Briggs  v.  Durham  Trac. 
Co.,  147  N.  C.  389,  61  S.  E.  373.) 


I'KnXIMATK    CAUSE.  14.') 


SKC'I'IOX    54. 


ACT   OF   (iol)    AND    IIIMAX    IXTKU- 
\'KNT1{)N. 

^1298.  It  has  hccii  seen  tli;it  wlini  llie 
injury  is  due  ciiliiTly  to  natural  causes, 
witliout  iiuuiau  iutcrvi'iitiou,  tiiat  is,  wIk-ii 
the  })roxiniati'  cause  is  the  act  ol'  (Jcxl,  ami 
is  such  as  hunuiu  skill  and  ahility  coukl  not 
reasonably  liave  foreseen  and  prevented, 
tliere  can  he  no  recovery;  hut  comhinecl 
with  the  act  of  (iod  tliere  may  he  the  negli- 
gence ol"  man.  human  intervention  as  an  in- 
tervening ellicient  cause,  accelerating  the 
injury  and  conseiiuent  damages.  One  may 
so  construct  his  lightning  rods  as  to  con- 
duct the  current  into  the  house  of  his 
neighbor,  lie  may  construct  a  dam  for  the 
storage  of  water  in  such  manner  as  to  be- 
come Uable  for  the  injury  done  by  its  burst- 
ing under  the  pressure  of  an  ordinary  flood. 
Here  would  he  two  i)roximate  causes  of  in- 
jury without  either  one  of  which  the  injury 
would  not  have  occurred.  Where  man  in- 
tervenes and  uses  an  act  of  God  to  cause 
an  injury,  he  is  liable  as  though  he  had 
committed  the  injury  with  forces  of  his 


146  DOCTRINE    OF 

Sec.  5Jf.  Act  of  God  and  Human  Intervention. 

own  orig-in,  and  subject  to  his  control.  ''No 
injury  can  be  said  to  be  the  act  of  God 
which  can,  under  any  fair  view,  be  attrib- 
uted to  the  negligence  of  man."  {Ga.  S.  & 
F.  Ry.  V.  Barfield,  1  Ga.  App.  203,  58  S.  E. 
236;  Chicago,  R.  I.  &  P.  Ry.  v.  McKone, 
Okla.  Div.  2,  127  Pac.  488,  42  L.  R.  A. 
709.) 

51299.  '*A  rainfall  or  cloudburst  which 
has  irregularly  and  infrequently  occurred 
a  number  of  times  within  the  memory  of 
man  in  a  particular  locality,  and  has  caused 
heavy  freshets  in  a  particular  stream,  is 
a  thing  that  may  reasonably  be  expected 
to  occur  again,  and  is  therefore  not  classed 
as  'vis  major/  or  the  act  of  God."  Here 
the  negligence  of  man  became  the  proxi- 
mate cause.  A  rainfall  or  cloudburst  is  in- 
deed the  act  of  God,  but  not  in  the  sense 
of  excusing  the  negligence  of  man  which 
has  intervened  as  an  efficient  proximate 
cause  of  the  injury.  {Wilson  v.  Boise  City, 
20  Idaho  133,  117  Pacif.  115,  36  L.  R.  A. 
1158.) 


rUOXIMATH    CAUSE.  147 

SECTION  55. 

INKVITALJLE   ACCIDENT. 

%  300.  There  is  much  conflict  among  the 
authorities  over  the  distinction  between  tiie 
terms  "act  of  God"  and  "inevitable  acci- 
dent." Some  hold  them  to  be  the  same 
thing,  while  others  say  that  every  act  of 
God  (classed  by  the  law  as  an  accident) 
is  an  inevitable  accident,  but  every  inevi- 
table accident  is  not  an  act  of  God.  Dam- 
age by  lightning  is  cited  as  an  example  of 
both,  act  of  God  and  inevitable  accident.  A 
collision  of  vessels  in  the  dark  is  cited  as 
an  example  of  inevitable  accident,  but  not 
an  act  of  God.  {The  Maheij,  14  Wall.  204, 
20  Law.  Ed.  881;  Fergusson  v.  Brent,  12 
Md.  9,  71  Amer.  D.  582.) 

51301.  There  are  many  cases  in  which 
it  is  impossible  to  entirely  eliminate  man 
from  those  accidents  which  are  said  to  be 
by  act  of  God.  ' '  There  is  the  intervention 
of  man  in  a  loss  by  tempest ;  for  he  chooses 
the  route  that  brings  the  vessel  where  the 
tempest  rages,  he  made  the  masts  and  sails, 
and  sets  the  sails  that  break  away  in  the 


14S  DOCTRINE    OF 

^ec.  55.  Inevitable  Accident. 

storm  or  drive  the  vessel  under;  he  made 
the  ship  that  is  too  weak  or  too  small  to 
live  in  such  a  tempest.  It  is  by  the  inter- 
vention of  man  that  vessels  bound  to  and 
from  England  keep  so  far  north  as  to  fall 
in  with  icebergs,  and  sometimes  be  de- 
stroyed by  them." 

There  are  doubtless  cases  where  at  the 
particular  time  and  under  the  imrticular 
circumstances  the  accident  could  not  have 
been  avoided.  It  was  then  inevitable,  but 
the  element  of  inevitability  proceeded  from 
the  negligence  of  man  at  some  previous 
time,  and  it  is  therefore  not  the  act  of  God. 

Where  man  can,  by  the  use  of  ordinary 
skill  and  foresight,  prevent  the  circum- 
stances which  will,  if  not  prevented,  result, 
in  due  course  of  time,  in  an  inevitable  acci- 
dent, it  is  not  the  act  of  God. 

51302.  "  'Inevitable  casualty'  is  a  broad- 
er term  than  'act  of  God.'  "  {McKinley  v. 
Jutte  tC-  Co.,  230  Pa.  St.  122,  79  Atl.  244,  22 
Ann.  Cas.  452;  Fergusson  v.  Brent,  12  Md. 
9,  71  Amer.  D.  582.) 

51303.  "Where  a  collision  takes  place 
between  two  vessels  at  sea,  which  is  the  re- 
sult   of    inevitable    accident,   without   the 


PROXIMATE    CAUSE.  140 

»S'cr.  ,7.7.  Iitrvitdhir  Accident. 

iio^li<?ence  or  fault  of  either  party,  each 
vessel  iinist  bear  its  own  loss,"  {Siainhack 
V.  Rae,  U  Wall.  532,  14  Law  Ed.  530.) 

f  304.  ( 'liicl"  Justice  Fuller  iu  delivering 
the  (>|»ini()ii  lor  llic  I'liited  States  Supreme 
C^ourt  iu  The  Majestic  (IGO  U.  S.  375,  41 
Law  Ed.  1039)  (piotes  from  «^  Kent's  Com., 
l)age  597,  ''The  Act  of  God  means  'inevita- 
ble accideut,  without  the  intervention  of 
man  and  public  enemies"  *  *  *,  and  again, 
3  Kent's  Com.,  page  21(5,  that  "l*erils  of 
the  sea  denote  natural  accidents  peculiar  to 
that  element,  which  do  not  happen  by  the 
intervention  of  man,  nor  are  to  be  pre- 
vented by  human  i)rudence."  The  Chief 
Justice  then  adds:  "The  words  'perils  of 
the  sea'  may,  indeed,  have  grown  to  have 
a  broader  signification  than  'the  act  of 
God.'" 

11305.  Many  courts  hold  that  "Acts  of 
God,"  "inevitable  accidents,"  "perils  of 
the  sea,"  and  "dangers  of  the  river"  are 
analogous  terms,  and  import  such  excuses 
as  will  relieve  a  common  carrier  from  lia- 
bility for  loss  of  goods  received  by  him. 
That  they  will  relieve  him  from  liability 
where  they  are  absolutely  free  from  human 


150  DOCTRINE    OF 

Sec.  55.  Inevitable  Accident. 

agency,  and  negliegnce  of  commission  and 
omission,  there  can  by  no  doubt,  except  in 
cases  where  he  has  obligated  himself  to  de- 
liver the  goods  notwithstanding  these 
things. 

5[306.  A  case  of  inevitable  accident, 
Kenova  Trans.  Co.  v.  Monongahela,  Etc. 
Co.,  56  W.  Va.  70,  48  S.  E.  844. 


PROXIMATK    CAUSE.  151 


SECTION  56. 
PURE  ACCIDENT. 

51 307.  I*ure  accidents  or  sim})le  acci- 
dents have  not  yet  been  eliminated  from  the 
facts  of  liuman  experience.  {Conley  v. 
Exp.  Co.,  87  Me.  352,  32  Atl.  0G5.) 

51308.  ''A  pure  accident,  as  recognized 
by  law,  is  something  that  occurs  after  the 
exercise  of  the  care  required  by  law  to 
prevent  its  occurrence,"  {U.  S.  v.  Boyd, 
45  Fed.  851.) 

%  309.  ' '  In  the  discussion  of  questions  of 
liability  for  negligence,  the  term  'pure  acci- 
dent' or  'simple  accident'  is  uniformly  em- 
ployed in  contradistinction  to  'culpable 
negligence,'  to  indicate  the  absence  of  any 
legal  liability.  A  'purely  accidental'  occur- 
rence may  cause  damage  without  legal  fault 
on  the  part  of  any  one. ' '  {Fidel,  d  Cas.  Co. 
V.  Cutts,  95  Me.  162,  49  Atl.  673. 

%  310.  If  in  doing  a  lawful  act,  using  due 
care  and  all  proper  precautions  neecssaiy 
to  the  exigency  of  the  case,  to  avoid  hurt 
to  others,  one  accidentally  does  injury  to 


152  DOCTRINE    OF 

Sec.  56.  /'lire  Acoident. 

another,  it  is  the  result  of  pure  accident, 
involuntary,  unintentional,  and  for  it  no 
action  lies.  (Broivn  v.  Kendall,  6  Cush. 
(Mass.)  292.) 

51311.  ''The  definition  of  'accident'  gen- 
erally assented  to  is  an  event  happening 
without  any  human  agency,  or,  if  happen- 
ing through  human  agency,  an  event  which, 
under  the  circumstances,  is  unusual,  and 
not  expected,  to  the  person  to  whom  it  hap- 
pens." {Carnes  v.  Iowa  S.  F.  M.  Assn., 
106  Iowa  281,  68  Amer.  State  306.) 

51 312.  In  law  a  j^ure  accident  is  some- 
thing that  occurs  after  the  exercise  of  such 
care  as  the  law  requires  under  the  circum- 
stances.   {U.  S.  V.  Botjd,  45  Fed.  851.) 

%  313.  A  pure  accident  is  that  which  hap- 
pens unexpectedly  and  without  fault.  {Os- 
borne V.  Van  Dyke,  113  Iowa  557,  85  N.  W. 
784.) 


I'UttXlMATK    CAT'SE.  153 

SECTION  57. 
NEGLKJKXC^E— I'JioXI.MATH   CAl'SE. 

^314.  "Xoi^liii:('ii('{*  is  tlu»  failure  to  do 
wliat  a  i-easonablo  aud  prudent  person 
would  ordinarily  have  done  under  the  cir- 
cumstances of  the  situation,  or  doing  what 
sucli  a  person  under  the  existinii:  circum- 
stances would  not  have  done." 

The  essence  of  the  fault  may  lie  in  omis- 
sion as  well  as  in  commission,  and  the  duty 
is  dictated  and  measured  by  the  exigency 
of  each  i)articular  case.  Judgments  which 
have  to  be  formed  in  emergencies,  and  on 
the  spot  are  not  to  be  held  to  the  same 
strict  account  as  those  which  are  formed 
after  time  for  due  deliberation.  {B.  t(-  P. 
By.  V.  Jones,  95  U.  S.  441,  24  Law  Ed.  506; 
Bailroad  Co.  v.  Broioi,  229  U.  S.  317;  The 
Germanic,  196  U.  S.  589;  Mason  v.  Post, 
105  Va.  494,  54  S.  E.  311.) 

51315.  Negligence  on  the  part  of  plain- 
tiff and  defendant  is  the  same,  but  that 
of  the  former  is  called  contributory  negli- 
gence. 

An  act  of  negligence  by  commission  or 


154  DOCTRINE    OF 

Sec.  57.  Negligence:  Proximate  Cause. 

omission  is  not  necessarily  actionable  be- 
cause it  is  negligent.  To  render  it  action- 
able it  must  be  the  proximate  cause  of  an 
injury.  Injury  alone  is  not  sufficient  to 
support  an  action  arising  from  the  alleged 
negligence  of  defendant.  There  must  be 
concurrence  of  wrong  and  injury.  The  re- 
lation of  cause  and  effect  must  be  estab- 
lished between  the  wrong  and  the  injury, 
and  that  the  proximate  and  not  a  remote 
cause.  {Lane  Bros.  Co.  v.  Barnard,  111 
Va.  680,  69  S.  E.  969;  Cumb.  Etc.,  R.  Co.  v. 
State,  73  Md.  74.) 

5[316.  Actionable  negligence  consists  in 
a  breach,  or  non-performance,  of  some  duty 
which  the  party  charged  with  the  negli- 
gent act  or  omission  owed  to  the  one  suf- 
fering loss  or  damage  thereby.  In  the 
action  of  assumpsit  employed  to  recover 
damages  for  breach  of  contract  (not  un- 
der seal  at  common  law),  the  proximate 
cause  of  the  damage  is  the  breach  of  con- 
tract, and  the  recovery  in  damages  is  the 
amount  due,  with  interest  and  costs.  {Rod- 
dy V.  Railroad,  104  Mo.  234,  15  S.  W.  1112, 
24  Amer.  State  333,  12  L.  R.  A.  746.) 


lUtOXIMATE    CAUSE.  155 

»S'(C.  .57.  Neffligencc:   I'roxinmlc  Cause. 

f  317.  Plaintiffs  purclia.sed  tickets  entit- 
ling them  to  conveyance  from  W.  to  H.  C. 
The  train  did  not  go  to  11.  C,  and  plain- 
tiffs were  taken  to  E.,  several  miles  further 
from  their  destination  than  IT.  (\,  and  in- 
creased their  walking  distance  by  two  or 
three  miles.  Defendant  thus  committed  a 
breach  of  contract  in  failing  to  carry  plain- 
tiffs to  H,  C.  This  breach  of  contract  was 
the  proximate  cause  of  loss  and  of  the  in- 
convenience suffered  by  plaintiffs  in  being 
com})elled  to  walk  that  additional  distance 
on  a  dark  wet  night,  and  for  this  a  recovery 
was  given;  but  one  i)laintiff",  the  wife,  it 
was  alleged,  took  cold,  from  her  exposure 
to  the  wet  on  that  night,  became  ill  in 
health,  and  incurred  expense  for  medical 
attendance  upon  her,  and  for  this  recovery 
was  refused  as  being  too  remote. 

The  Court  then  laid  down  the  following 
rule:  "To  entitle  a  person  to  damages  by 
reason  of  a  breach  of  contract,  the  injury 
for  which  compensation  is  asked  should  be 
one  that  may  be  fairly  taken  to  have  been 
contemplated  by  the  parties  as  the  possi- 
ble result  of  the  breach  of  contract." 

' '  To  illustrate :    Suppose  that  a  passen- 


156  DOCTRINE    OF 

Sec.  57.  Negligence :  Proximate  Cause. 

ger  is  pnt  out  at  a  wrong  station  on  a  wet 
night  and  obliged  to  walk  a  considerable 
distance  in  tlie  rain,  catching  a  violent  cold 
which  ends  in  fever,  and  the  passenger  is 
laid  up  for  a  couple  of  months,  and  loses 
through  his  illness  the  offer  of  an  employ- 
ment which  would  have  brought  him  a 
handsome  salary."  He  may  recover  for 
the  breach  of  contract,  the  inconvenience 
of  the  walk  in  the  rain,  or  the  expense  of 
some  other  means  of  conveyance,  all  of 
which  might  reasonably  be  contemplated 
by  the  parties  at  the  time  of  the  breach, 
but  the  fever,  and  loss  of  proffered  position 
are  too  remote.  {Hohhs  v.  London  So.  Ry., 
Law  R.  10  Q.  B.  Ill ;  Murdoch  v.  Railroad, 
133  Mass.  15.) 

%  318.  The  rule  is  the  same  in  contract 
and  in  tort,  and  the  result  must  be  the 
natural  consequence  of  the  act,  and  one 
which  could  have  been  foreseen  in  the  light 
of  attending  circumstances,  unless  the  act 
is  one  of  wanton  wrong.  (Ehrgott  v. 
Mayor,  Etc.,  96  N.  Y.  264;  Railroad  v.  Kel- 
logg, 94  U.  S.  469.) 


rUoXIMATlO    CAUSE.  157 

Sec.  57.  NcgUgcncc:   PrOdimatc  Cnuao. 

Doctrine  Restated. 

5[  319.    Excluding  acts  of  wanton  wrong, 

actionable    negligoiicc    is    coiiiiionnded    as 
follows : 

1.  A  negligent  act  of  coiiniiission  or  omis- 
sion by  the  defendant. 

2.  Conseciuent  resulting  injury  to  plain- 
titf  of  which  the  negligent  act  was  the  i)rox- 
imate  cause. 

3.  That  the  injury,  or  some  injury,  ought 
to  reasonably  have  been  foreseen  in  the 
light  of  attending  circumstances. 

To  be  excluded  from  the  compound : 

1.  Contributory  negligence  amounting  to 
a  proximate  cause. 

2.  Independent  intervening  efficient 
causes  between  the  defendant's  negligence 
and  plaintiff's  injury. 


15S  DOCTRINE    OF 


SECTION  58. 

PROXIMATE  CAUSE  DEFINED  AND 
ANALYZED. 

WiTHiisr  THE  Law  op  Negligence. 

%  320.  The  proximate  cause  of  an  injury 
is  the  efficient  and  dominant  cause  which 
acts  directly  to  produce  the  effect,  or  sets 
in  operation  another  cause,  or  other  causes, 
not  entirely  independent  of  itself,  which 
naturally  and  reasonably,  in  unbroken  se- 
quence, results  in  producing  the  effect  as 
a  consequence  of  the  first  or  primary  cause, 
without  which  it  would  not  have  occurred. 

Actionable. 

^321.  To  be  actionable,  the  proximate 
cause  must  have  been  such  as  a  person  of 
ordinary  intelligence  and  prudence  ought 
to  have  foreseen  that  it  might  naturally 
and  probably  produce  an  injurious  effect 
on  some  person  or  thing,  but  not  neces- 
sarily the  one  which  it  did  produce. 

Intervening  Cause. 

51322.  If,  subsequent  to  the  original 
proximate  cause,  a  new  efficient  cause  in- 


TROXIMATi:    TAUSE.  159 

See.  58.  Proximate  Cause  Defined,  Etc. 

tervene,  to  effect  the  injury,  having  its 
origin  independent  of  tlie  original  cause, 
or,  having  its  origin  in  the  original  cause, 
but  which  could  not  reasonably  have  been 
foreseen,  by  a  person  of  ordinary  intelli- 
gence and  prudence,  as  a  natural  and  prob- 
able result  thereof,  it  supersedes  the  origi- 
nal cause,  breaks  the  connection  between 
the  original  cause  and  the  effect,  and  be- 
comes the  proximate  cause  of  the  injury, 
rendering  the  original  i»roximate  cause 
remote. 

Ordinary   Intelligence. 

5f  323.  It  will  be  observed  that,  'instead 
*  *  *  of  saying  that  the  liability  for  negli- 
gence should  be  co-extensivo  with  the  judg- 
ment of  each  individual,  which  would  be  as 
variable  as  the  length  of  the  foot  of  each 
individual,  we  ought  rather  to  adhere  to 
the  rule  which  requires  in  all  cases  a  re- 
gard to  caution  such  as  a  man  of  ordinaiy 
prudence  would  observe."  (3  Bing.  New 
Cases,  468.) 

''Natural^'  and  '* Probable." 

^324.  Effects  which  are  only  230ssible 
are   not   included   among   those   that   are 


160  DOCTRINE    OF 

Sec.  58.  Proximate  Cause  Defined,  Etc. 

natural  and  probable.  Effects  which  are 
only  possible  may  never  happen,  but  those 
which  are  natural  or  probable  are  those 
which  do  happen  , according  to  the  nature 
of  things,  and  with  such  frequency  or  regu- 
larity as  to  become  a  matter  of  definite  in- 
ference, and  in  the  light  of  surrounding 
circumstances  ought  to  be  foreseen  by  a 
person  of  ordinary  intelligence  and  pru- 
dence as  likely  to  follow  his  act  as  effect 
follows  cause. 

The  natural  consequence  of  an  act  is  that 
which  ordinarily  follows  it.  A  probable 
consequence  is  one  that  is  more  likely  to 
follow  its  supposed  cause  than  it  is  to  fail 
to  follow  it. 

COKOLLARY. 

51325.  AVhere  one  willfully  injures  an- 
other, the  doctrine  of  contributory  negli- 
gence does  not  apply,  because  the  act  is 
not  negligent.  Where  one  sees  another  who 
has  negligently  put  himself  in  peril,  and 
injures  him,  without  the  use  of  ordinary 
care  to  avert  the  injury,  he  is  not  only 
negligent,  but  his  act  is  akin  to  willfulness 
and  the  same  rule  applies.  The  party  who 
has  the  last  clear  chance  to  avoid  an  in- 


runx I. M All :  CAUSE.  n;i 

Sec.  iJS.  I'lddimalr  Cause  Defined,  Etc. 

jury  and  fails  is  not  excnsod  l)y  the  negli- 
gence of  any  one  else.  His  negligence,  and 
not  that  of  the  one  first  in  fault,  is  tlie  ])rox- 
iniate  cause  of  the  Iiijiiiy. 

Plaintiff  who  has  received  an  injury  oc- 
casioned by  the  negligence  of  defendant, 
Imt  who  could  have  avoided  it  by  ordinary 
care  on  his  part,  cannot  recover  damages 
therefor,  although  the  defendant  ought  to 
liave  discovered,  but  did  not  discover,  his 
l)eril  in  time  to  have  prevented  the  injury, 
where  plaintiff's  negligence  continued  up 
to  the  moment  of  the  injury,  and  where 
the  exercise  of  reasonable  care  before  that 
time  would  have  revealed  his  danger  and 
enabled  him  to  Imve  escaped  by  his  own 
effort.  [Di/erson  v.  Railroad,  74  Kan.  528, 
87  Pac.  680.  Distinguished  by  Himmel- 
u-nght  V.  Baker,  82  Kan.  569,  10*9  Pac.  178; 
Cons.  B.  Co.  V.  Doijlc,  102  Ya.  399,  403,  46 
S.  E.  390;  Richmond  Tr.  Co.  v.  Martin,  102 
Va.  209,  45  S.  E.  886.) 

51 326.  Plaintiff''s  negligence,  to  be  the 
proximate  cause,  must  continue  to  the  time 
of  the  injury,  or  to  the  point  where  after- 
ward it  is  impossible  by  ordinaiy  care  to 
prevent  it.      It  is  defendant's  duty,  not- 


162  DOCTRINE    OF 

Sec.  58.  Proximate  Caxisc  Defined,  Etc. 

withstanding  plaintiff's  negligence,  to  ob- 
serve that  degree  of  care  required  by  the 
doctrine  of  last  clear  chance  where  he  knew, 
or  might  have  known  by  the  exercise  of 
ordinary  care,  the  plaintiff's  peril.  {Edge 
V.  Railroad,  153  N.  C.  212,  69  S.  E.  74.) 

51 327.  The  doctrine  of  last  clear  chance 
only  applies  when  defendant's  negligence 
is  subsequent  to  plaintiff's,  and  it  does  not 
apply  where  their  negligence  is  concurrent 
at  the  time  of  the  injury.  {Green  v.  Rail- 
road, 143  Cal.  31,  76  Pacif.  719,  101  Amer. 
State  68.) 


rnDxrMATE  cause.  if;3 

SECTION  59. 
PROXIMATE    CAUSE    CHANGES. 

If  328.  The  diflieulty  in  applying  the  doc- 
trine oi'  proximate  cause  arises  in  part 
from  the  fact  that  the  law  of  cause  and 
effect  must  be  established  between  the  act 
comi)lained  of  and  the  effect  or  injuiy  sus- 
tained ;  and  that  an  eff'ect,  as  soon  as  pro- 
duced, may  itself  become  a  cause  producing 
another  effect,  and  that  effect  in  turn  be- 
come the  cause  of  another  effect,  tlius  form- 
ing a  chain  of  links  that  were  first  effects, 
or  results  of  causes,  and  then  instantly  be- 
came causes  themselves  by  which  the  final 
effect  or  injury  is  consummated. 

^329.  (a)  Where  a  locomotive,  coupled 
to  a  train  of  an  hundred  cars,  more  or  less 
loosely  coupled  together,  is  gently  started, 
the  car  couplings  are  tested  one  by  one  with 
a  severe  jerk  until  ninety-nine  have  been 
found  sufficient  to  haul  all  behind  them,  but 
the  one  hundredth  coupling  breaks,  leaving 
the  car  behind.  The  proximate  cause  of 
the  break  is  not  the  car  next  in  front  of 
the  break,  but  the  starting  of  the  locomo- 


164  DOCTRINE    OF 

Sec.  59.  Proximate  Cause  Changes. 

tive.  That  is  the  cause  without  which  tlie 
coupling  would  not  have  broken.  This  cou- 
1)1  ing  may  have  been  defective,  but  for  the 
force  applied  it  would  not  have  broken. 
Thus  far  no  injury  has  been  done,  and  no 
complaint  made. 

51330.  (b)  The  car,  thus  severed  from 
the  train,  is  a  caboose,  carrying  the  con- 
ductor. It  runs  back  down  the  track,  turns 
over,  and  injures  him.  The  proximate 
cause  of  his  injury  is  not  the  starting  of 
the  locomotive,  but  the  breaking  of  the 
coupling. 

51 331.  (c)  Where  it  appears  that  the  ca- 
boose would  have  stopped  on  the  track  and 
no  injury  have  come  of  it,  but  for  the  fact 
that  a  switch  was  open  which  turned  the 
caboose  upon  a  side  track  which  it  followed 
to  the  end  and  down  an  embankment,  doing 
the  injury.  Here  the  proximate  cause 
shifts  to  the  open  switch,  the  cause  with- 
out wliicli  the  injury  would  not  have  oc- 
curred. 

5[332.  (d)  The  caboose  was  well  equip- 
ped with  hand  brakes  with  which  the  con- 
ductor could  easily  have  stopped  the  car, 


I'KoXI.MA  ri-;    CAUSE.  lO.") 

>SV'f.  59.  Proximate  Cause  Chunycs 

but  he  neglected  to  do  so.  His  negligent 
omission  hecoines  the  i)roxiinate  cause  of 
his  injury  and  lie  cannot  therefore  recover, 
though  the  railroad  conii)any  may  have 
been  negligent  in  the  use  of  an  insnfficient 
cou})ling,  and  in  having  an  oi)en  switch. 

Though  defen(hint  may  have  been  negli- 
gent in  the  first  instance,  yet  if  plaintitf's 
negligence  contributes  proximately  to  his 
injury  lie  cannot  recover.  {TJie  1>.  *(•  P. 
Ry.  V.  Jones,  95  U.  S.  439,  24  Law  Ed.  506; 
BaUroad  v.  Paris,  111  Va.  41,  08  S.  E.  398; 
27  L.  E.  A.  (N.  S.)  773.) 


166  DOCTRINE    OF 

SECTION  60. 
''LAST  CLEAR  CHANCE." 

51 333.  In  the  beginning  it  was  believed, 
and  held  by  the  courts,  that  where  plaintiff 
and  defendant  were  both  guilty  of  negli- 
gence, resulting  in  injury  to  plaintiff,  he 
could  not  recover.  Human  transactions, 
and  the  development  of  finer  discrimina- 
tion, and  sense  of  justice  evolved  an  ex- 
ception to  that  rule.  It  would  be  difficult 
to  trace  this  exception  to  its  origin.  It 
seems  to  have  been  clearly  recognized  as 
part  of  the  common  law  of  England  by 
Lord  Ellenborough  in  the  case  of  Butter- 
field  v.  Forrester,  11  East  60,  decided  April 
22,  1809,  in  which  the  Lord  Chief  Justice 
said :  "A  party  is  not  to  cast  himself  upon 
an  obstruction  which  has  been  made  by 
the  fault  of  another,  and  avail  himself  of 
it,  if  he  does  not  himself  use  common  and 
ordinarj^  caution  to  be  in  the  right.  *  *  * 
One  person  being  in  fault  will  not  dispense 
with  another's  using  ordinary  care  for  him- 
self." 

^  334.  In  the  case  of  Bridge  v.  Railroad, 
3  Meeson  &  Welsby's  Rep.  244,  247,  A.  D. 


PROXIMATE    CAUSE.  167 

Sec.  60.  Last  Clear  Chance. 

1837,  the  Court  of  Exchequer  says:  **The 
rule  of  hiw  is  laid  down  with  perfect  cor- 
rectness in  the  case  of  Biitterfield  v.  For- 
rester." 

%  335.  Still  later,  in  the  year  1842,  in  the 
case  of  Davies  v.  Mann,  10  M.  &  W.'s  Rep. 
545,  following-  the  same  rule,  the  trial  court 
instructed  the  jury,  "That  though  the  act 
of  the  plaintiff,  in  leaving  the  donkey  on 
the  highway  so  fettered  as  to  prevent  his 
getting  out  of  the  way  of  carriages  travel- 
ing along  it,  might  be  illegal,  still,  if  the 
proximate  cause  of  the  injury  was  attrib- 
table  to  the  want  of  })roper  conduct  on 
tlie  part  of  the  driver  of  the  wagon,  the 
action  was  maintainable  against  the  de- 
fendant; and  his  Lordship  directed  them, 
if  they  thought  that  the  accident  might  have 
been  avoided  by  the  exercise  of  ordinary 
care  on  the  part  of  the  driver,  to  find  for 
the  plaintiff." 

The  jury  so  found  for  the  plaintiff,  and 
the  finding  was  sustained. 

51336.  This  doctrine  was  now  so  well 
established  that  it  came  to  be  called  and 
known  as  "The  rule  in  Davies  v.  Mann," 


168  DOCTEINE    OF 

Sec.   60.  Last   Clear   Chance. 

and  it  is  still  so  called  in  late  text  books 
on  the  law  of  negligence.  However,  within 
the  last  three  decades  a  new  name — "Last 
Clear  Chance'' — for  this  doctrine  has  come 
into  general  use  by  the  courts. 

The  rule  presupposes  negligence  on  the 
part  of  both  plaintiff  and  defendant,  the 
negligence  of  plaintiff",  preceding  that  of 
defendant. 

Discovered  Peril. 

%  337.  Where  the  plaintiff  has  negligent- 
ly imperiled  his  person  or  property  to  in- 
jury at  the  hands  of  the  defendant,  the 
rule  is  in  esse  as  to  him.  If  the  injury  come 
from  defendant  without  negligence  on  his 
part,  the  rule  does  not  apply;  but  if  the 
defendant  has  discovered  the  peril,  or  had 
such  opportunity  as  would  have  enabled  a 
person  of  ordinary  care  and  prudence  to 
have  discovered  it,  though  not  discovered 
by  him,  the  rule  is  in  esse  as  to  him  also. 
If,  after  the  discovery,  or  such  opportunity 
of  discovery,  of  the  peril  by  the  defendant, 
it  is  possible  by  due  care  to  avoid  the  in- 
jury he  must  do  so,  or  be  guilty  of  negli- 
gence, and  liable  for  the  injury,  provided, 
however,  that  where  the  plaintiff's  negli- 


I'llOXIMATi:    r.VT'SE.  ICO 

Her.  GO.  Last   Clear  Chame. 

geiK'o  c'OTitiiuu's  II])  to  the  moment  of  the  in- 
jury, and  wlicic  the  exei-cise  of  reasonable 
carci  l»y  liiiii  hcfoic  flial  liiiic  would  liave 
revealed  liis  danger  to  liim,  and  enabled 
liim  to  have  avoided  the  injury  by  his  own 
effort,  the  defendant  will  not  be  liable.  See 
ante  1|325,  and  Sinitli  v.  IxaUroad,  58  Ore- 
gon L>-J,  WW  Pacil".  41,  lM;  Ann.  Cas.  434. 

^1  338.  This  principle  is  thoroughly  well 
established  in  this  country  by  many  de- 
cisions of  the  Supreme  Court  of  the  United 
States,  and  by  the  courts  of  last  resort  in 
many,  if  not  in  all,  of  the  states.  The  fol- 
lowing instruction,  ai)proved  by  the  United 
States  Supreme  Uourt,  in  Inland  and  S.  C. 
Co.  V.  Tolson,  139  U.  S.  551,  558,  35  Law 
Ed.  270,  272,  is  directly  in  point:  *  *  * 
"Although  the  rule  is  that,  even  if  the  de- 
fendant be  shown  to  have  been  guiltj^  of 
negligence,  the  plaintitf  cannot  recover  if 
he  himself  be  shown  to  have  been  guilty 
of  contributory  negligence  which  may  have 
had  something  to  do  in  causing  the  acci- 
dent, yet  the  contributory  negligence  on  his 
part  would  not  exonerate  the  defendant, 
and  disentitle  the  phiintiff  from  recovering, 
if  it  be  shown  that  the  defendant  might, 


170  DOCTRINE    OF 

Sec.  60.  Last   Clear  Chance. 

by  the  exercise  of  reasonable  care  and  pru- 
dence, have  avoided  the  consequence  of  the 
plaintiff 's  negligence. ' ' 

^  339.  Applying  the  law  as  laid  down  by 
the  Virginia  Court,  in  Backus  v.  Norfolk 
d  Atl.  Ter.  Co.,  112  Va.  292,  71  S.  E.  528, 
and  Roanoke  Ry.  Co.  v.  Carroll,  112  Va. 
598,  72  S.  E,  125,  the  driver  of  an  automo- 
bile, street  car,  locomotive,  or  the  like,  ordi- 
narily rests  under  no  obligation  to  stop  his 
machine  merely  because  he  sees  a  person 
approaching  the  track  in  front,  especially 
if  that  person  be  a  footman,  without  any- 
thing apparent  about  him  to  admonish  the 
driver  that  he  is  not  able  to  protect  himself. 
The  driver  may  assume  that  such  person 
will  stop  and  wait  for  the  machine  to  pass, 
and  not  attempt  to  cross  so  immediately 
in  front  of  it  as  to  come  in  contact  with  the 
machine.  A  pedestrian  can  stop  instantly, 
but  the  momentum  of  such  machine  renders 
it  less  easy  of  control.  See  Bassford, 
Admr.  v.  Railroad,  70  W.  Va.  280,  73  S. 
E.  926. 

^340.  ''The  doctrine  of  the  Mast  clear 
chance'  applies,  notwithstanding  the  con- 


PROXIMATE    CAUSE.  171 

Sec.  60.  Last  Clear  Chance. 

tributoiy  negligence  of  a  plaintiff,  where 
the  defendant  knows,  or  by  the  exercise  of 
ordinary  care  ought  to  know,  of  plaintiff's 
danger,  and  it  is  obvious  that  lie  cannot 
extricate  himself  from  it,  and  fails  to  do 
something  which  it  has  i)ower  to  do  to  avoid 
the  injur)^;  or  when  the  plaintiff  is  in  some 
position  of  danger  from  a  threatened  con- 
tact with  some  agency  under  the  control  of 
the  defendant,  when  the  plaintiff'  cannot, 
and  the  defendant  can,  prevent  the  injury. 
The  plaintiff  must  show  that  at  some  time, 
in  view  of  the  entire  situation,  including  his 
own  negligence,  the  defendant  was  there- 
after culpably  negligent  and  that  such 
negligence  was  the  latest  in  succession  of 
causes.  In  such  case  the  plaintiff's  negli- 
gence is  not  the  proximate  cause  of  the 
injury.  But  this  doctrine  has  no  applica- 
tion to  a  case  where  both  parties  are  equal- 
ly guilty  of  an  identical  duty,  the  conse- 
quences of  which  continue  on  the  part  of 
both  to  the  moment  of  the  injury,  and  prox- 
imately contribute  thereto."  So.  Ry.  Co. 
V.  Bailey,  110  Va.  833,  67  S.  E.  365,  ap- 
proved in  112  Va.  604, 113  Va.  337,  74  S.  E. 
208. 


172  DOCTRINE    OF 

Sec.  60.  Last  Clear  Chance. 

^341.  ''If  plaintife  is  giulty  of  negli- 
gence which  might  have  produced  his  in- 
jury, but  before  the  injury  actually  results 
the  defendant  is  guilty  of  negligence  which 
is  the  immediate  cause  of  the  injury,  the 
negligence  of  defendant  becomes,  in  law, 
the  sole  proximate  cause  of  the  injury,  even 
though  no  injury  could  have  resulted  to 
plaintiff  if  he  had  not  been  originally  negli- 
gent. The  negligence  of  defendant  super- 
vening between  the  original  negligence  of 
plaintiff  and  the  happening  of  the  injury, 
destroys  the  legal  force  of  plaintiff's  negli- 
gence as  a  contributory  cause  to  the  in- 
jury." Reidell  v.  Trac.  Co.,  69  W.  Va.  18, 
71  S.  E.  174,  approving  17  W.  Va.  190. 

51342.  "If  the  railroad  company's  em- 
ployees knew  of  i3laintiff's  danger  at  a 
crossing  in  time  to  have  avoided  injuring 
him  by  exercising  reasonable  care,  the  com- 
pany would  be  liable  for  their  failure  to 
do  so,  under  the  last  chance  doctrine, 
though  plaintiff  was  negligent  in  putting 
himself  in  a  dangerous  position,  and  negli- 
gently remained  there  down  to  the  time  of 
the  accident;  it  not  being  essential,  as  a 
rule,  that  plaintiff's  negligence  shall  have 


PROXIMATK    CAUSE.  173 

Hcc.  00.  Ltixt   Clrar  Chnncc. 

ceased  before  the  accident,  in  order  to  re- 
cover under  that  doctrine.  *  *  * 

If  both  the  i)laintiff  and  defendant  could 
liave  prevented  the  accident,  but  neglected 
to  do  so,  their  negligence  was  concurrent, 
and  the  last  chance  doctrine  does  not 
[i])})!}'. "  Briiggeman  v.  Railroad,  147  Iowa 
187,  123  N.  W.  1007,  21]  Ann.  Cas.  87G. 

5f343.  "lie  who  has  the  last  clear  chance 
to  avert  an  iiijurv,  notwithstanding  the  pre- 
vious negligence  of  the  injured  party,  is 
solely  responsible  for  such  injury  resulting 
from  his  failure  to  exercise  ordinary  care." 
Fichctt  V.  Railroad,  117  N.  C.  616,  23  S.  E. 
264,  30  L.  R.  A.  257,  53  Amer.  State  611. 


INDEX 

Ucfi  rciirt  .s    (in    la    ,Si<liinis    hikI    I'liraiji  hiiIih. 

Accident — ])iiit'  iiiid    simplf,   ."»(",. 
Accidental  inwiiis,  .'{f),  V-^Hi. 
Act  of  (Jod— defined.  1,  5:1. 

liuuian  interveiidon.  '>4. 

may  excuse  fmm  legal  duty,  'ui,  ^21)<>. 
Actionaliie  n«';,'litrence,  ;">,  Ki,  !.'(;,  L'S,  3s,  4S,  57. 
Adultery — killing  for,  l.'>,  'IstJ. 
Alabama,  5. 

Alienation  of  aflection,  is,  *'l.'{t;. 
Arizona,  ♦>. 
Arkansas,   7. 
Assumption  of  risk  and  contributory   neiilltjeiice  di> 

tinsulshed,  2,  IJS. 
Automobile  ca.ses,  is,  24,  45). 

Bite  of  poisonous  insect.  10,  If  145. 

Black  damp,  49,  11274. 

Blood  poisoning,  19,  11145. 

Breach  of  contract,  3,  1119. 

Bridge— defective,  47,  11261,  12S. 

Building  i)ermit — staging  sidewalk.  49,  1I27:>. 

California,  8. 

Carrier's  refusal  to  deliver,  IS,  i;i3r>. 
(.'ase  of  inevitable  accident,  5.'>,  1I3()(;. 
Cause  and  effect,  22,  1[154. 
Cause  and  effect — legal  relation.  5.  ii42. 
Cess  pool — malaria,  13,  1190. 
Children — age — negligence,  5,  23,  1137. 
(175) 


176  INDEX 

City — street  obstruction,  35. 
Coal  mine,  9,  160. 
Coal  mine — black  damp,  49,  1127-t. 
Collision  of  vessels  at  sea,  55,  11300. 
Colorado,  9. 
Connecticut,  10. 
Cow  case,  5,  ^44. 

Concurrent  causes,  7,  13,  23,  25,  26,  40,  41,  45,  47. 
Contracts,  1,  TI5. 

Contributory  negligence,  2,  5,  6,  10,  14,  10,  17,  21,  i'ls, 
29,  30,  45,  46,  48,  49,  50,  52. 
when  no  defense  5,  1[41. 
Creator  of  danger,  responsible,  20,  T[149. 
Criminal  act,  29,  58,  1|186,  11325. 


Dams,  1,  20,  114,  P47. 
Damages  by  railroad,  9. 

recoverable,  45,  40,  48. 
Dangers  of  the  rivers,  55. 
Death  from  liquor.  37,  11125. 
Death  from  hemorrhage,  32,  11194. 
Deceit,  36,  11208. 
Defective  machinery,  8,  9. 
Delaware,  11. 

Development  of  disease,  4,  1125. 
Discovered  peril,  GO,  11337. 
Disease  caused  by  injury,  49,  11270. 

hastened  by  negligence,  4,  1125. 
District  of  Columbia,  4. 
Dog — excited  by  abuse,  31. 

wrongful  conduct,  23. 
Dominant,  efficient  cause,  3. 
Drugs— Sale  of,  29,  11186,  11187. 
Drunkenness,  13,  42,  47. 
Due  caution.  47,  11257. 


INDEX  177 

Klt'ctiieity,  10,  4'J,  11121,  •"277. 

Klevator  cases,  4,  1(5. 

Emergency,  2,  1!7. 

PhiglaiKl,  1. 

Essence  of  negligence,  21,  57.  •'ini.  314. 

Evidence,  11,   12. 

biirth'ii   of   imxtf,   17.  51.  *2"^*>. 
Explosives  sold  tn  rliildicii,  2i$.  i;iG3. 
Express  Co. — stolen  package,  IS,  11134. 
Extent   of   responsiliiiity,  5,  1135. 
Ealse  certiiicate  of  acknowledgement,  7.  '52. 
Fellow  servant's  negligence,  4. 
Fine  and  imprisonment,  KJ,  Ulls. 
Fire  cases,  32,  30,  37,  47.  40,  50. 

by  explosion.  2.  lill. 

from  locomotive,  34,  112tiit. 

in  populous  city,  31. 

effected  by  wind,  0,  T.59. 

started  on  one's  own  property.  15.  HKtO. 
Fire  Co.  hindered  by  cutting  liose.  7,  1!54. 
Flood— boom— ,  49,  1f280. 
Florida,  12. 
Forces  of  nature  accelerated.  14.  1194. 

Cas— escaping.  22.  4S.  11155.  269. 

Georgia.  13. 

Hazi\rdous  and  extra  hazardous,  27,  1il7s. 

Highway,  1,  42,  11236. 

Horse  cases,  23,  24,  25.  32,   40.  41,  46. 

Ice— fall  on.  37.  T215. 

Idaho,  14. 

Illinois,  15, 

Indiana,  16 

Inevitable  accident  defined,  55,  11300. 

Infant,  employment  of,  29,  40,  1184,  226. 

Immediate  and  proximate,  30,  11190. 


178  INDEX 

Iiijuuftioii,  44,  111241]. 

Injured  while  violatiiij;  ordinamr.  1<>,  ^bS. 

Injui'.v  jireciiiitated  delerium  tremens.  84,  1[197. 

Instruction.  11,  30.  42.  51. 

Insurance  against  fire,  2,  Ull. 

Intervening  cause,  2,  3,  13,  15,  10,  41,  45,  5\ 

Intoxication,  43.  50,  11239,  282. 

li>^\a.  17. 

Kansas,  is. 

KentuclvV.   19. 

l^andlord,  25. 

Last  clear  chance.  5,  8,  10,  38,  39,  58,  00. 

Locomotive,  49. 

Louisiana.   '20. 

Maine  21. 

Malicious  act.  1,  58,  T16,  325. 

Maryland.   22. 

Massachusetts,  23. 

Master  and  servant,  5.  10.  17.  23,  27,  38,  39,  42,  51. 

Michigan,  24. 

Mines,  50,  11281. 

Minnesota,  25. 

Mississippi,   2(5. 

Missouri,  27. 

Montana,  2S. 

Mule — proximate  cause,   15,  1(103. 

Natural  and  prohable  result,  3,  58,  1114.  324. 
Natural  and  proximate  result,  14,  1192. 
Nebraska,  29. 
Negligence  defined,  47,  50,  11200, 

not  necessarily  actionable,  57,  11315. 

of  plaintiff  and  defendant  the  same,  57. 

of  plaintiff  to  be  proximate  cause,  58,  11320. 

in  contract  and  tort  the  same,  57,  1(318. 


INDEX  179 

<'!Mis('  ;iii<l  rffcct  )<•  ln'  fstiililislicil.  ."iT.  '.lir.. 

cliildn-ii.   Si.  "ir.N. 

drunken   person.  "J.'J,  lIKHt. 

niilro.id  <<tnii);iny.  it,  !."».  Ud. 
Tel.  v^c  Tel.  (•oniiianies.   ir>.  ."{1. 

fliiid  person.  11,  *;7S. 

iniiUiii;:   injiir.v   possihle,    l.">.   •  Hcj. 

I'ellow    seivjinl.    1,   !!li7. 

(lint  riltutor.v,   lo.  1i7'J. 

pnixinnile    caiist'.    10.    11.    .">7.    ."iS. 

not    presunH'd.   S.  f'tCt. 

mixed  tpieslion.  '•>.  '*-. 

rule  for  rentvery  <»t"  d;iniiiKes.  7i~,  *"M1. 

docfrin*'  restated.  07.  '"•i^*^■ 
Nevacla,  30. 
New  llaiupsbire.  .'M. 

New  Jiidependenf   cause,  .'i,  5s.  *'14.  'A2\l. 
New  Jersey,  'S^. 
New  Mexico,  .*i3. 
New  York,  34. 
North  Carolina.  .Ho. 
North  I>akato.  'Ml 

Ohio.  ;{7. 

Oklahoma,  3s. 

Orrlinary  care  detinoil,  0.  1147. 

Oregon,  39. 

Passenger  ejected,  13,  USS. 

Paying  out  money,  42. 

PeiMisylvania,   40. 

Perils  of  the  sea,  55. 

i'oison   sold  without   label,   17,   1il27. 

Prior  and  subsequent  negligence,  21,  11152. 

I'roximate  cause  defined,  3,  6,  9,  10,  12,  13,  15,  10.  19. 

22,  25,  27,  31,  35,  39,  40,  43, 

44.  45,  58. 
Proximate  cause  defined  and  analyzed,  58. 


180  INDEX 

I'roxiniMl','  CMiise  only  regarded,  'M,  43,  4S. 

prereiiuisites,  4S,  11266. 
test,  3,  15,   16,  23,   45. 
question  of  fiict,  3,  4,  5,  IS. 
que.stion   of   law,    15,    ]6,    10, 

36,  37,  45,  48. 
changes,  illustration,  5!>. 
Pure  accident,  56. 

Railroad  : 

crossings,  35,  1|2U5. 

extra  train,  47,  TI259. 

failure  to  stop  at  station,  42,  50,  11235,  2S4. 

liand  car,  17,  11126. 

recovery  from,  13.  115)1. 

torpedo,  37,  1(213. 

unsafe  car,  33. 
Rainfall  and  cloudbursts,  54,  11299. 
Real  estate  agent,  18,  23,  11140,  1.59. 
Reasonable  anticipation,  51,  1[289. 
Remote  cause,  43,  11238,  240. 
Rhode  Island.  41. 
Rule  in  Davies  v.  Mann,  60,  11336. 
Several    proximate    causes,    17,    34. 
Simple  tools.  27,  11177. 
Solely,  equal  to  proximate,  6. 
South  Carolina,  42. 
South  Dakota,  43. 
Squib  case,  1. 
Statutory  liability,  10. 
Storm— act  of  God,  20. 
Street  car  collision — act  of  God.  53. 
Surgeon's  liability,  21,  K152. 

Tennessee,  44. 

Te.st  of  proximate  cause,  3,  HIS. 

Texas,  45. 


INDEX  181 

Thoughtless  inattention,  I'l,  11151. 

Unhrokeii  coiine('tion--c!iiisf  jind  effect,  2. 

United  States,  2. 

United  Stiitcs  <\  < '.  A..  .:. 

rtiih,  4G. 

Veudoi'  with  ;nid   uilliuiil    kimwh'djje,  2,  I'll). 

Vermont,  47. 

Violation  of  slatiitf.  :;,  .").  is.  .",ti. 

Virginia,  48. 

\'iH  major,  'u'>. 

Wasliington,  V^. 

Water  Company   case.   2ti.   *  \~7>. 

Weot  Vir^'inia,  50. 

WLsconsiu,  51. 

Wyoming,  52. 


AA    000  855  839    7 


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irm  L9-Series  4939 


